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England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Papera Traders Co Ltd & Ors v Hyundai Merchant Marine Co Ltd. & Anor [2003] EWHC 9018 (Costs) (17 September 2003)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2003/9018.html
Cite as: [2003] EWHC 9018 (Costs)
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SUPREME COURT COSTS OFFICE
Clifford Inn Fetter Lane London EC4A 1DQ |
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B e f o r e :
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| THE PAPERA TRADERS CO LTD AND ORS |
Claimant |
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| - and - |
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| (1) HYUNDAI MERCHANT MARINE CO LTD (2) THE KEIHIN CO LTD |
Defendant |
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Mr Nicholas Bacon (instructed by Hill Dickinson Taylor) for the Defendant
Hearing dates : 2 & 3 July 2003
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Crown Copyright ©
- On 23 July 1998 there was a fire on board Eurasian Dream. As a result of the fire all the cargo owned by the claimants was either a total loss or was damaged due to fire, smoke, soot and/or heat. Initial investigations by the fire experts led to the conclusion that the vessel had been unseaworthy. The vessel's firefighting systems were ineffective and/or had been improperly maintained and/or the crew had been improperly trained in their operation. The defendants denied liability and put the claimants to strict proof. The trial took place between 3 and 20 December 2001, subject to a short adjournment. Judgment was handed down by Cresswell J in the claimants' favour on 7 February 2002 with a costs award in favour of the claimants. The order was drawn up finally on 6 March 2002.
- There was a dispute concerning the claimants' claim to recover the fees of W K Webster & Co ("Websters") as part of the damages. They were the claims and recovery agents appointed by Allianz. Their offices are situated at Sidcup, Kent. The claim was for 5% of the recovery by way of principal and interest in respect of their costs insured by Allianz Insurance Ltd of South Africa ("Allianz"). In the alternative the claimants claimed the fees as costs. The issues to be determined were set out in the Order dated 6 March 2002, which included, in paragraph 7(1):
- Mr Sharma was a claims handler with Websters. He provided three witness statements dated respectively 27 July 2001, 14 December 2001 and 10 May 2002. The issue was tried before Cresswell J on 23 and 24 September and 1 and 2 October 2002 ("the second trial"). At the hearing the claimants were represented by Mr Priday. The defendants were represented by Mr Rainey QC and Mr Charkham. Judgment was handed down on 18 October 2002. Cresswell J noted that the issues were novel and important on which there was no reported case in the Commercial Court, Admiralty Court or in London Arbitration.
- Websters was described by the judge as:
- It is apparent from the judgment that shortly after the fire Websters were approached by various of the cargo underwriters to represent their interests. They carried out salvage/GA work on behalf of these underwriters and, in accordance with their usual practice and market practice in relation to such work, they charged for it on a time and trouble basis.
- Websters were also contacted by Allianz with a view to them assisting in protecting their recovery/legal interests and assisting with a surveyor. They rendered services to Allianz in the nature of salvage/GA work, focusing in particular on the salvage and sale of the cargo. Work for other insurers and underwriters was charged on a time and trouble basis. The account rendered to Allianz dated 14 December 1998 for the period July – December 1998 (pages 821-823) was charged on a time and trouble basis.
- Allianz instructed Websters who in turn instructed Richards Butler. According to Websters' faxed letter dated 2 September 1998, the fees of solicitors, if instructed, would be a disbursement. The recoverable costs of Richards Butler have been agreed.
- Cresswell J held that the fees of Websters were to be recoverable as costs as defined in CPR 44.3(1)(a) to be assessed (if not otherwise agreed) on the standard basis and as further set out in the order.
- On 18 February 2003 I made an order for the submission of skeleton arguments and evidence. The defendants identified six issues on which decisions were required, namely:
- Prior to December 1998 Websters charged on a time and trouble (i.e. hourly rate) basis for salvage and general average work. After December 1998 Websters charged on a contingency fee basis. There is an issue, which I shall have to decide at the detailed assessment, whether some of the work done by Websters prior to December 1998 was included in the contingency fee arrangement and not covered by the account dated 14 December 1998.
- Mr Bacon explained that the fees to be determined arose out of a contingency fee arrangement rather than an hourly time charging arrangement where no hourly rate was agreed. While Mr Sharma gave evidence in the second trial, there was no documentary evidence to support the rate claimed at £175 per hour. There was no evidence of any tariff of hourly rates or schedule of hourly rates for different fee earners. Although a draft did exist it was never produced to the court. As part of the time and trouble basis in December 1998, Websters had charged on an hourly rate multiplied on a time basis. The invoices provided no indication of the time on which the bill had been prepared. Cresswell J came to the conclusion that the going rates varied, dependent upon seniority, from £40 per hour to £175 per hour.
- Paragraph 30(1) of his judgment reads as follows:
- That passage was taken from page 3 of the agreed response to questions posed by the judge (page 637). I was informed that the document had been agreed before the four-day hearing and that the contents would have been known to Mr Sharma before the second trial. The defendants had added a caveat at the last page which did not affect the hourly rates (page 639). In making this point Mr Bacon said that in no way was he intending to impugn Mr Sharma as a witness. Mr Morgan referred later to two passages in exchanges between the judge and Mr Priday where the judge commented that Mr Sharma was not an independent expert in the international market practice for claims handlers (see pages 360, 372 and 383). Mr Bacon submitted that Mr Sharma was not an independent expert.
- Mr Bacon took me through Mr Sharma's second and third witness statements. In his first witness statement dated 27 July 2001 (which was not before me) Mr Sharma described himself as being employed by Webster & Co as an assistant manager in the General Average Casualty Management Department. He had been employed by Websters for three years. Previously he had worked for Dolphin Maritime Ltd and for the managers of the Steamship Mutual Underwriters Association (Bermuda) Ltd. He thus had ten years experience of handling marine claims.
- Mr Bacon noted that nowhere in his second and third statements did Mr Sharma indicate the level or rate at which he was charging. This was in spite of the fact that the second statement was made "to explain in further detail the claim which is made for the fees of W K Webster & Co" and the third statement was made "in order to clarify certain issues which have arisen in relation to" the fees of his company.
- Mr Bacon explained that work in the General Average Department was generally invoiced on a "time and trouble" basis and Allianz were charged on that basis. Fees in the Recovery Department were charged on a "no cure, no pay" basis. Once Allianz decided to pay out to their assured on the basis of a constructive loss, their claim became a matter of recovery. Accordingly the basis of charging was changed from "time and trouble" to "no cure, no pay". Mr Sharma continued to handle the claim although it passed to the General Average Department. The fee for recovery above £6,000 was reduced to 5% in view of the size of the claim and in order to cement a relationship with Allianz.
- Mr Bacon submitted that no benefit could be derived from the invoice referred to by Mr Sharma in paragraph 12 of the second statement. The invoice dated 14 December 1998 was on a time and trouble basis (i.e. hourly rates) and appeared at pages 821-823. The bill was for a rounded figure of £32,400 unsupported by an computation of hourly rates and time expended. It was accompanied by a three-page narrative which concluded with the words "general care and attention throughout". I interpose here to mention that Mr Morgan relied upon the narrative.
- Mr Bacon explained that there were two bases of charging:
- Mr Bacon referred to the letter dated 14 February 1998 (pages 580-581) which identified the 5% basis of charging. He explained that it would be necessary for me to resolve at some stage whether the 5% fee agreement started for work after December 1998 by reference to the invoice dated 14 December 1998. That was the last time and trouble invoice. He would submit that it was only after that invoice that the 5% applied.
- Mr Bacon referred to the concerns held by the defendants about the invoice dated 14 December 1998. This resulted in paragraph 17 of Mr Hoyes' third statement dated 26 April 2002 and in letters written on 29 November 2001 and 23 January 2002 (see pages 761, 842/3 and 863/4). Mr Hoyes was the solicitor and associate employed by the defendants' solicitors. There was a clear request for clarification by way of breakdown by reference to hourly rates and how the fees were calculated. I note from the letter that it identifies six invoices and also refers to receiving for the first time two weeks previously the further invoice dated 14 December 1998. The second letter clearly requested again how the invoice was broken down by reference to hourly rates, etc. Mr Bacon explained that on 6 February 2002 Richards Butler provided a response in the following terms:
- For convenience I set out the reply to the point of dispute under the heading 'Estimated time' (page 51 of the Websters' bill):
- Mr Bacon explained that it was not clear whether or not the 5% figure was included in these costs. He took me through e various passages in the evidence of Mr Sharma beginning with page 149.
- Mr Bacon submitted that Websters have not rendered time and trouble invoices to Allianz for recovery work, although they had done so for the sale of goods and salvage services. Mr Joannou was the equity partner who supervised case workers and may have been involved in this case. Theresa George was the general manager who wrote letters when Mr Sharma was absent on holiday. She reported to Mr Joannou. Cases were allocated by them to claims handlers dependent upon experience and capacity. Mr Sharma was the case handler. He was uncertain who supervised him. Any supervision was minimal. Mr Bacon noted that only one fee earner had been claimed on page 10 of the bill at £175 apart from the cost draftsman. Mr Sharma was not the most senior person in Websters. He was third in rank and one of many claims handlers subject to some supervision. That was relevant to any comparison with solicitors. Mr Bacon noted that Mr Sharma had been unable to provide any table of rates and that any enquirer would merely be told that "our hourly rate for that particular case handler is whatever it is and that would be it, really …" (page 176). Mr Sharma accepted that he should have responded to Allianz's letter dated 30 July […..] requesting a breakdown of Websters' fees. However, Allianz had not raised the issue for a further four years.
- Mr Sharma would have charged £175 in 1998 and the same in October 2002 (when he was giving evidence). He also said he would have given that rate to Allianz. He would not have provided a mark-up on that figure on a straight time and trouble basis (page 178). A discount might have been given if the claim was very small or did not merit a full fee. Mr Bacon put down a marker on the reference to no mark-up because a claim for such a mark-up at 100% appeared on page 18 of the bill. He submitted that this further uplift on £175 an hour was to bring Websters into line with the 5% fee that was charged. That was contrary to Mr Sharma's evidence. There was more likely to be a discount than an uplift. Furthermore, at page 189 Mr Sharma said that it would be very unlikely that there would be a mark-up for work charged on a time and trouble basis on his £175 per hour.
- Mr Sharma conceded that computing the fee by reference to an hourly rate was a bit too precise. There would not have been a mathematical calculation. There would have been an evaluation based upon a reading of the files. When asked whether he drew up a narrative bill, he said, at page 181:
- Apart from the current sixth or seventh draft on charging, Mr Sharma accepted that there was no guidance on how time and trouble fees should be assessed. He confirmed he did not record time, although some people did so in different departments. There was no point in doing so if work was done on a contingency basis.
- On fixing the hourly rate by his bosses, Mr Sharma said at page 187:
- Mr Bacon made a further submission to the effect that the amount to be allowed in this case per hour should be substantially less than a solicitor undertaking this work. He referred to the passage at paragraph 30(1) of the judgment of Cresswell J which is set out in paragraph 12 above. Mr Bacon stressed the judge's view that the hourly rates would be less than a City solicitor's fees for doing the same work.
- Mr Bacon relied upon the judgment of Potter J (as he then was) in Piper Double Glazing Ltd v D C Contracts [1991] reported at Costs Law Reports Core Volume page 256. The case concerned the costs of claims consultants in arbitration proceedings. The matter was considered under the former rules and could be relied upon under CPR. Potter J held that Rules of the Supreme Court did enable the taxing master to tax the fees in principle. The first two paragraphs on page 266 upon which he relied made reference to the possibility of work being carried out by a fee earner who might in effect have been undertaking two jobs, thereby saving time and money for the client. Other work might be carried out by a fee earner who lacked the expertise of a conventionally qualified fee earner so that the fee would be lower. Mr Bacon relied in particular upon the final paragraph on page 266 and the top paragraph on page 267 which reads as follows:
- Mr Bacon submitted that Potter J was saying that Order 62, by virtue of the rules relating to the recoverability of costs by reference to a litigant in person, effectively recognised the de facto position that solicitors' charges were the very most that fee earners could recover. At this stage I queried whether Potter J was really making that point because he used the words "it may be thought appropriate" rather than making the clear statement that such costs should not or must not exceed those of solicitors. Mr Bacon submitted that the previous and present rules provided that de facto protection. Under RSC Order 62 Rule 18 and CPR 48.6 there was a limit of two-thirds of the solicitor's charges, provided the litigant in person could establish pecuniary loss. There was thus an unspoken assumption that the solicitors' fees were the maximum sum which could be recovered under this de facto protection. Potter J was by analogy linking the recovery of other costs to the ceiling imposed on the costs of litigants in person. Mr Bacon conceded that Potter J did not make a finding. However, he understood the judgment to be interpreted in the manner set out in his submissions since the court had been mindful of the cap. He invited me to adopt the same approach.
- For convenience I set out the two relevant rules, which read as follows:
- Mr Bacon submitted that the only persons entitled to recover costs under the old Rule and CPR were solicitors, experts and litigants in person, and disbursements of professional witnesses, counsel and medical witnesses. Potter J and this court were looking at a new breed of costs. Websters were not litigants in person. They were an agency employed by the claimants to bring recovery in respect of fire on the ship. They were entitled to recover fees, provided they were not more than the costs solicitors would receive.
- I referred Mr Bacon to RSC Order 62, Rule 17 and Appendix 2 Part 1 which set out what are usually called the seven pillars of wisdom. I put it to him that there was no ceiling on these costs. Mr Bacon speculated why non-solicitors might be entitled to recover more than solicitors. He submitted that claims handlers like Mr Sharma had no professional qualifications and were not subject to professional rules and controls and had no accreditation. They should not be entitled to charge the same fee as a solicitor entitled to appear in this court. Potter J appeared to be bracketing such people as claims managers as litigants in person. Accordingly, it was necessary to identify a fee referable to a fee earner in a solicitor's firm and apply the one-third discount. There must be a separation or diminution between the fees of solicitors and the fees of unqualified individuals. This submission was reflective of what had been said by Potter J in the Piper judgment and by Cresswell J in the present case at paragraph 30(1).
- Mr Bacon then developed his geographical location submission. The nearest courts to Websters' offices in Sidcup were Bromley and Croydon. The rates allowable for a paralegal in 1998 and 1999 was about £80 per hour. Two-thirds of that would be £53, which fell within the bracket of £40 - £175 stated by Cresswell J. If the hourly rate for a solicitor fee earner has not been agreed with the client, recourse would be had to the appropriate rate applicable to the solicitor's office by reference to the court guidelines. It was inappropriate for Websters to apply City of London rates.
- It was also necessary to identify the comparable fee earner in the solicitor's office, namely, a paralegal in the Croydon area. That could be ascertained from the amount of work carried out by Richards Butler's fee earners as set out, for example in the documents schedule at page 11 for work undertaken in August 2000. It was undertaken by an assistant solicitor with minimal involvement by the partners. Much work was undertaken by the trainee solicitors. Mr Bacon referred to the summary at the end of the schedule of documents, which is also set out on pages 38 and 39 of the bill. For convenience I set it out in full:
- Mr Bacon submitted that if the appropriate fee earner was an assistant solicitor (grade 3) in the Croydon area the inter partes rate in 2002 would be £130 per hour. If that rate was discounted to 1998/1999 the average rate would be £120. The two-thirds figure would be about £80 maximum. These rates would be the maximum amount allowable to reflect the fact that Websters were not solicitors.
- Mr Bacon then referred to the rates claimed by the assistant solicitors at Richards Butler. To put this submission into context I now set out the rates claimed by all the fee earners of Richards Butler on page 4 of their bill.
- Mr Morgan set out his two initial submissions:
- Mr Morgan referred to the rates claimed by Richards Butler's assistant solicitors and pointed out that £175 was about the mid-point of the work carried out by JPWG which covered a similar period to that of Mr Sharma. If that approach was too broad, Mr Sharma's rate should be based on the assistant solicitor's rates as a comparator.
- Mr Morgan conceded that if Mr Sharma was a solicitor whose bill was being assessed he would be in considerable difficulty in substantiating his bill because records had not been kept. There were other professionals such as doctors, accountants and others whose charging methods were determined by the market and not by any other internal proof requirement. It was unfair to judge the fees of these people by the internal professional standards of the legal profession. The assumption for solicitors' charging rates were different from the assumptions of others. There was a scientific basis before mark-up was added. Where that was applied to a profession where that did not happen, the inference was that something dodgy was going on. Solicitors exercised judgment when adding a mark-up based on the 'seven pillars of wisdom'. It was inappropriate to apply the standards of one profession to another. The agreed statement of facts had produced a market range of £40 to £175. It has been accepted by Cresswell J because it had been agreed. The Expense of Time was a useful tool. It was not the only way to determine matters. The difficulty lay in determining how to apply it to a business where a varying but significant proportion of the work was carried out on a contingency fee basis, i.e. one not based on rates with a percentage mark-up as in a CFA.
- Mr Morgan submitted that the passages to which Mr Bacon had referred in which the judge commented on the lack of independent evidence was not a criticism of Mr Sharma. What the judge was saying was that he could not accept biased evidence where expert evidence was due. The comment related to Mr Sharma giving evidence where he had a financial interest in the outcome. His evidence concerned international market practices.
- Mr Bacon had referred me to the 14 December 1998 bill and noted that there was insufficient information from which to determine what hourly rate had been applied. Mr Morgan invited me to take judicial notice that many solicitors' bills contained insufficient information as to what hourly rates had been applied. The introduction and enforcement of Rule 15 was a recent development.
- When considering the rate, it was necessary to consider the nature of the man and the nature of the work. The type of work undertaken by Mr Sharma was set out in the time and trouble bill dated 14 December 1998. It was work which was in part the subject of a detailed assessment. It reflected that Mr Sharma was highly experienced in some very tricky areas of law and practice. To equate his experience to a paralegal in the City of London or in Croydon was unreasonable. Mr Sharma had set out the work involved in paragraphs 12–14 of this third witness statement (pages 563-566).
- It was necessary to understand work descriptions outside the legal profession. For example, a partner undertook strategic direction and management of the company. A manager had the day-to-day operational management of a department. Websters had some 200 employees. A case handler was in effect a fee earner. Mr Sharma's workload was set out in the transcript of his evidence at page 154. I summarise it as follows:
- In summary, Mr Morgan relied upon the following in support of the claim that £175 was reasonable:
- Mr Morgan disagreed fundamentally with Mr Bacon's submission that it was appropriate to apply guideline rates for solicitors and discount them by one-third because claims agents were effectively litigants in person, and then discount further for a solicitor's firm in Croydon or Bromley. Mr Morgan referred to the statement of the second preliminary issue at page 259 in the Piper judgment which reads as follows:
- Mr Morgan pointed out that Richards Butler became involved after Websters had been instructed. He posed two questions, namely:
- Mr Morgan noted that Mr Bacon was submitting that Potter J was equating anyone other than a solicitor as a litigant in person. Mr Morgan did not agree. The reference to Order 62, Rule 18 was probably of some assistance (and must have been based on the submissions before the judge) in reaching a conclusion that it should not be more expensive to instruct a claims consultant than a solicitor. Potter J did not refer to the deduction of one-third in that connection at all. He did not deal with a submission that claims consultants should be allowed at solicitors' rates less one-third. That was clear from the paragraph on page 267 in the sentence 'by analogy … costs recoverable'. Any such reduction would be discriminatory and unreasonable. The one-third reduction for litigants in person was aimed at the reduction of the profit costs in a solicitor's bill. A litigant in person should not profit from the litigation. It would be surprising if others involved in litigation should not make a profit. They were involved on a fee-paying basis with a view to making a profit.
- Mr Morgan also disagreed with Mr Bacon's geographical location argument on structure grounds. Solicitors acted for clients both locally and further away. City solicitors had offices in the City especially for clients based there. Firms like Websters had no need to be located in the City but being located outside the City did not mean they were undertaking the equivalent work of a suburban solicitor. Websters, as one of the top firms undertaking this work, would have to pay appropriate salaries for high calibre staff.
- Mr Morgan also took issue with the rates relied upon by Mr Bacon. They were expense rates and therefore with the mark-up of 50% would be £120/£140. For Grade 2 (4-8 years) they would be £150. Grade A (over 8 years) would be £170. The current 2003 figures were as follows:
- Prior to Richards Butler's participation Mr Sharma had negotiated security (with a partner) which was the alternative to taking proceedings against the charterers. It also involved dealing with jurisdiction. Bills of lading provided for jurisdiction in Korea or Japan. The port of destination was Mozambique. Mr Sharma achieved a settlement where English jurisdiction was accepted. It determined the court and the set of rules to be applied. That affected the amount of limitation sums. That was relevant to the type of vessel, the tonnage involved and package limitations, i.e. cargo and its size and nature. The choice of forum was important for package limitation. The security jurisdiction agreement made by Mr Sharma was, in the view of the claimants, very advantageous. Mr Sharma had negotiated the package with a senior partner with Hill Dickinson Taylor. That contrasted with the paralegal status argued for by Mr Bacon.
- Where there was a casualty all the general average and salvage would be conducted in the Casualty Department. If work was done by the Casualty Department it would be done on a time and trouble basis. If there was no casualty but a loss the work was done by the Recovery Department. A line had to be drawn between salvage and recovery work. Here Allianz agreed to a no cure, no pay arrangement. It was necessary for me to assess a notional charge on a basis on which it was not charged. There was a further submission which he would develop later on the percentage mark-up of 100%. This was a notional contract by the Casualty Management Department which Allianz had paid from the beginning on a fixed hourly rate without a success fee mark-up. It was necessary to exclude that it was contingent at this stage but an uplift should be brought into account at a later stage. Websters would be paid on an hourly basis (i.e. basic costs plus mark-up) to which a further mark-up should be added for the contingency fee element. Mr Bacon interposed to refer to paragraph 12 of Mr Sharma's second statement where he accepted the fee should be dealt with on a time and trouble basis on a notional rate agreed from the beginning.
- In reply, Mr Bacon contrasted Mr Morgan's submissions to the effect that the claimants were prepared to apply the comparison of the grades of fee earner used by solicitors but declined to accept the geographical basis of charging used by solicitors and the courts. The court was asked to determine an appropriate rate for Mr Sharma. Mr Sharma's claim to £175 an hour had been unsupported by any evidence. In the absence of such evidence the court should have regard to other fee structures for charging, such as those in solicitors' offices or by other professionals. Mr Bacon took issue with Mr Morgan's submission on the test to be applied, namely that if it was not cheaper for the work to have been carried out by Richards Butler then Mr Sharma's rates should be allowed. If it was cheaper to have used Mr Sharma, no difficulty arose. That submission ran counter to the express view of Cresswell J, who expected that the amounts that were going to be allowed would be lower than the amounts that would be charged by the solicitors. Mr Bacon again relied on paragraph 30(1) where Cresswell J had said:
- Mr Morgan had submitted that the test was not between the cost of work carried out by Mr Sharma and the cost of work carried out by Richards Butler. It was necessary for me to determine a rate for Mr Sharma in the absence of any documentary evidence of expense rates of Websters. Cresswell J held that the rates varied from £40 to £175 an hour and had made the point that, although the hours would vary, they would certainly be less than City of London solicitors' fees for doing the same work. The only evidence was by Mr Sharma that he would have charged £175 on a time and trouble basis. He appeared to have picked the highest figure from the bracket of agreed rates. Mr Morgan at this stage noted that the point had not been put to Mr Sharma and it was inappropriate to draw an adverse inference.
- Mr Bacon submitted that experts usually produced a fee sheet indicating an hourly rate and the number of hours. The 1990 Code required solicitors to explain the basis of their charging.
- Mr Bacon responded to Mr Morgan's point on the nature of the work carried out by Mr Sharma. Hourly rates only reflected in part the work undertaken. The other part reflected the overheads apportioned to that worker. The nature of the work was largely irrelevant to that issue. Salaries, the location of the firm and rents, lighting and technology were largely not dependent upon the nature of the work undertaken. A solicitor in Birmingham might undertake the same work as a City solicitor but his charging rate would not be the same. In the absence of any documentary evidence, consideration of the work done by Richards Butler revealed that the majority of work had been undertaken by assistant solicitors and trainee solicitors rather than partners. In the schedule of duplication of work, there was much work undertaken by trainees. If that was correct, Mr Bacon queried why Mr Sharma should be paid at £175 for such work. Richards Butler's trainee solicitors were charging £130 per hour. On the location submission Mr Sharma's rate for such work should reflect the Croydon rate. The court could not be assisted by the number of cases he handled.
- Mr Bacon understood Mr Morgan to accept that Mr Sharma should not recover £175 per hour for the period during which Richards Butler's assistant solicitors charged less, namely up to 31 October 2002. Cresswell J had clearly expressed the view that Mr Sharma should not recover more than City solicitors. A reduction could be achieved by the one-third reduction under the Piper judgment or where Mr Sharma's rate exceeded the City rate. Mr Bacon reminded me that where doubt existed it must be exercised in favour of the paying party.
- Mr Bacon submitted there was no evidence before Cresswell J that Websters were one of the top firms in their profession. He submitted that the reason why City solicitors' rates were higher than, for example, Croydon or Manchester, was not because they employed solicitors at the top of their profession but because they were located in London where the rates and running costs were higher. Solicitors at the top of their profession were employed in other centres.
- Mr Bacon submitted that claim loss adjusters located outside London was because it was cheaper to do so. That precluded them from claiming rates as if they were located in the City of London. Although there was not much recourse to them, Mr Sharma was subject to the supervision of two other members of the firm. Some of the work on security was the subject of the costs of Websters which were being assessed. It was a relatively straightforward matter. There was limited correspondence and exchanges over the telephone without protected negotiations. Some of Mr Sharma's work was at a level undertaken by trainee solicitors. His work was basically getting information and sorting it out.
- Mr Morgan responded on three points:
- Mr Bacon reiterated that Mr Sharma did not keep any records at all. His evidence on the time and trouble bill dated 14 December 1998 was to flick through the files after the event and arrive at a guestimate of the time spent. It had been retrospectively constructed by estimation with the benefit of a costs draftsman's input. He submitted that the Frascati judgment (2 December 1994) was superseded by Johnson v Reed Corrugated Cases Ltd [1992] 1 All ER 169 at page 187 and by Brush v Bower Cotton & Bower CLR Core Vol 223 at page 234. That reads as follows:
- Mr Bacon explained that he was approaching his submission by reference to the practice of solicitors especially the modern practice of computer time recording. He accepts that Websters were not solicitors.
- Mr Morgan accepted that in relation to most of the costs of Websters they were being assessed on the standard basis and the Claimants must establish their claim. Adverse inferences should not be drawn from the fact that time had not been recorded. Solicitors knew how important it was to record time in order to support claims for costs. Other professions such as Websters were not subject to similar practices laid down by professional bodies for the conduct of their business. At page 158E Mr Sharma explained in relation to time and trouble bills that it was necessary to take into account the commercial reality of raising fee notes. He had raised hundreds of them and had maybe two queries. That commercial practice was accepted by their clients. It was necessary to consider the papers one would expect to find in a claims recovery file rather than on a solicitors file.
- Mr Bacon responded that there were no specific rules for experts, for example accountants. However they would be expected by the court to produce detailed information which was usually derived from contemporaneous computer records. Where sufficient information was not provided, doubt would arise. In the absence here of records there must be doubt about the time estimation. I pointed out to Mr Bacon that the Bar had failed to provide backup information fees but had been required to do so by Practice Direction No.2 of 1992 (para 1.12). I also pointed out that an expert would know that if the party retaining him was successful he would have to justify his fees. That is not what happened in this case. Most cases settle and very few involve solicitors. Mr Bacon reminded me that the Claimants sought these costs as damages and they proceeded with the claim in the absence of supporting documents. I referred Mr Bacon to the judgment in Tate & Lyle v GLC [1981] 3 All ER 716 where there had been a claim for managerial and supervisory expenses. I noted that the claim was made by analogy with the admiralty practice. However, as Mr Bacon surmised, there were insufficient records to support that particular claim.
- Mr Bacon noted that Websters (effectively as clients) instructed Richards Butler whose bill was a disbursement in Websters bill. There was parity in comparison of a client instructing a solicitor. There was much client work being undertaken by Websters. It was work covered by the judgment of Bingham J (as he then was) in Richards & Wallington (Plant Hire) Ltd v Monk & Co Ltd Costs Law Reports Core Vol 79. It was fact finding material and the sifting of and production of information. It was important to distinguish that it was Websters not Allianz who introduced Richards Butler. It was also necessary to consider the work carried out by Websters. That was set out in paragraph 25 of the judgment. Mr Bacon then commented on examples which he set out in paragraph 22 of his skeleton argument, namely:
- Mr Bacon submitted that the client should undertake the necessary work and pass on the result of that work to the solicitors to then analyse. The work referred to was background research and not recoverable by solicitors.
- It was agreed between counsel that it was more appropriate to make compendious submissions at this stage and for detailed decisions to be taken at the detailed assessment.
- Mr Bacon referred to the judgment of Stanley Burnton J. in Admiral Management Services Ltd v Para-Protect Europe Ltd & Ors [2002] 1 WLR 2722 which was the most recent case on the Wallington Plant Hire judgment. He referred to the headnote and the paragraph headed "Held" which reads as follows:
- Mr Bacon submitted that paragraphs 40, 41 and 43 under the heading "Were the Claimants' staff experts and did their work qualify as expert work?" reiterated what Bingham J said in the Richards & Wallington judgment. The work of digging out and presenting background factual information for the claim (namely work customarily done by the client) for solicitors to work on must be disallowed as being irrecoverable. I asked Mr Bacon whether under this judgment the expertise of the employees was still not recoverable. He referred to paragraph 44 of the judgment in which the Judge left over the issue. It reads as follows:
- Mr Bacon submitted that the Judge there was providing the building blocks for the subsequent analysis of the work undertaken. He submitted that unless one was an expert at doing expert work instructed by solicitors, the work was irrecoverable. The client did not recover doing such work which was to be handed over to solicitors. That was what Websters were doing. By reference to paragraph 41 of the judgment, Mr Bacon submitted that it was necessary to ascertain whether it was expert work undertaken in the Nossens case or was it fact finding work for which a costs order was refused in Richards & Wallington. Mr Bacon conceded that where work could have been carried out by Richards Butler, it was likely to be recoverable. But work, for example, of sifting through chassis numbers and bills of lading was clients work. None of Websters time had been claimed in Richards Butler's bill for the first trial when that would have been possible.
- Mr Bacon also relied upon the reference in Richards Butler's bill for the costs of the first trial where they described themselves on page 3 as the insurer's "agent". That description was repeated in paragraph 16 of Mr Sharma's third witness statement (page 566). He also relied upon paragraph 13 of Mr Sharma's third witness statement (page 566) which reads as follows:
- Mr Bacon submitted that the cost of solicitors corresponding with insurers was recoverable. The costs of insurers conducting the correspondence with solicitors was not recoverable.
- Mr Morgan submitted that it would be extraordinary if no costs were recoverable under Cresswell J's order. There had been a hearing lasting some 3½ days during which he heard from Mr Sharma in great detail. He heard what Mr Sharma had been doing and the role of marine recovery agents and had had the benefit of an agreed statement about recovery agents. If there was doubt as to recoverability, he would not have passed the issue to a Costs Judge. That would be disproportionate under CPR. The Claimants therefore proceeded on the basis that there would be recovery. Mr Morgan accepted that the claim was novel. It had not been contemplated when the work was done. It was easier to claim as damages rather than costs. The Judge had taken a contrary view and ordered the costs to be the subject of a detailed assessment.
- Mr Morgan submitted that the cases of Nossens and Richards & Wallington had been overtaken by the Civil Procedure Rules. He relied upon the judgment of Judge Anthony Thornton in Amec Process & Energy Ltd v Stork Engineers & Contracts (No.3) [2002] All ER (D) 48 (April). The case concerned the claim by a litigant for time expended by his own staff. He relied upon paragraphs 112 and 113 under the heading "The cost of time spent in preparation by Amec's own personnel":
- The finding that CPR had overtaken previous cases was in accordance with the correct approach to be adopted under CPR. The finding that costs of necessary work should be allowed if it had been incurred at less expense than would have been involved if done by solicitors was of such common sense that it had great force. Mr Morgan noted that Mr Bacon had submitted that the judgment carried less weight that the Admiral judgment which was a decision on appeal. He submitted that such a proposition had no basis in law. Both were High Court decisions of equal status. The contrary was not argued in the Admiral case. Mr Morgan relied upon paragraphs 12-14 and 27 in the Admiral judgment which read as follows:
- In Nossen's case, the respondent, United Kingdom Atomic Energy Authority, had had experiments conducted by its expert. The judgment in Amec said that CPR had changed everything. That was not argued in the Admiral case. At this stage I mentioned the judgment by Lord Woolf as Master of the Rolls in which he held that CPR cases were of little assistance. That was a reference to the Biguzzi judgment on which Mr Morgan subsequently relied. Mr Bacon accepted at this stage that in procedural issues under CPR, for example striking out, it was desirable to have less regard to pre CPR cases. He also referred to the Reid Minty judgment by the Court of Appeal which concerned indemnity costs.
- Mr Morgan noted that Mr Bacon had relied upon the old fashioned categories of recoverable work, for example solicitors, counsel, experts and litigants in person (in another context). He submitted that these categories were too narrow for modern litigation because they ignored the trend which had taken place in the real world towards diversity and specialism. That must be taken into account in order to avoid having to retain the former rigid rules which were "swept away" by judgments such as Brush v Bower Cotton & Bower. An example of this development was reflected in the Factortame (No.8) judgment which was argued before Cresswell J. He would therefore have had a clear expectation of what sort of work would be recoverable. In Factortame Grant Thornton were engaged by the clients and not by the solicitors Thomas Cooper. Before Master Wright it was accepted that there was a risk that the agreement with Grant Thornton might be found to be champertous. If that was so would it taint Thomas Cooper's retainer. A critical point was that the agreement was directly between Grant Thornton and Thomas Cooper. The solicitors had written a letter confirming the instructions. The nature of the services rendered by Grant Thornton were found in the judgment at page 398 paragraph 28 which was an extract from Thomas Cooper's bill. It reads as follows:
- As counsel in the case Mr Morgan explained that the collection of the documentary evidence had been undertaken by Grant Thornton rather than Thomas Cooper. There was a group of Spanish fishermen forming part of the English fishing fleet for the purpose of the Merchant Shipping Act. Many were based physically in Spain. Grant Thornton took a van down, which was driven around the various offices in Northern Spain, to collect documents and bring them back. That was a service of benefit to the case generally and provided support to the solicitors. The documents included books of account which were also relevant to the solicitors for the damages claimed. That work was litigation support which does not fall conveniently into any of the categories referred to by Mr Bacon. The work led to a saving of cost. The judgment referred to the saving of costs at paragraph 86. That reads as follows:
- The accountants performed many tasks including management of large amounts of material rather than pure accountancy work. There were no concerns that their work was actually recoverable subject to the champerty point.
- Mr Morgan submitted that the Amec case, which allowed the client to recover costs of time spent by its own staff on "litigation support" was reflecting the modern trend of what was a reasonable recovery of costs. Judge Thornton made the point in his Amec judgment that things have changed under CPR. (See paragraph 74 above.). Mr Morgan submitted that it was necessary to take into account the overriding objective. He relied upon Rule 1.1(2)(b) and (c) which read as follows:
- Mr Morgan submitted that if there is a category of costs which saves expense and deals with the case in a way which is proportionate according to the overriding objective such a category should be encouraged. Interpreting "costs" included imparting to costs the meaning attributed to it by Judge Thornton. That included taking into account the overriding objective. In Amec Judge Thornton, sitting as a Judge in High Court, held that the old pre CPR cases did not apply. It was the only authority on the impact of CPR on the interpretation of "costs". The decision should be followed. The judgments of High Court Judges effectively bound Masters in the absence of exceptional reasons to the contrary. The only equivalent judgment was Admiral where the point had not been argued.
- Mr Morgan also relied upon the Court of Appeal judgment in Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926 which concerned a case on striking out. The relevance of old cases was dealt with on page 1930 in the judgment of Lord Woolf under the heading "The Decision of the Judge". The relevant part reads as follows:
- To support this submission Mr Morgan also relied upon the judgment of Hart J in Nat West Lombard Factors Ltd v Arbis, The Times Law Reports, 29 October 1999. It concerned the application of Ladd v Marshall Rules under CPR. In the second column of the report reads:
- Mr Morgan noted that Mr Bacon's view was that one could ignore all that because the Biguzzi judgment concerned procedure whereas the issue here was costs. That submission ignored the near binding judgment of Amec. There were various arguments in earlier decisions as to whether provisions about costs were procedural or not. They concerned appeal rights on the rules which applied in the 19th century. The Civil Procedure Rules were designed to provide for a new regime not just for procedure but to whatever was within the ambit of Civil Procedure Rules. If a matter was covered by CPR it was subject to the new order. Wing mirrors were not needed to interpret it. Accordingly Amec should be followed. In Nossens and Richards & Wallington in effect the client was seeking to charge for work done by his staff in preparing the factual side of the case. Websters were not the same as the client.
- Mr Morgan explained the factual basis for his submissions. Allianz the insurer client had one relatively inexperienced employee dealing with the matter in the South African office. Mr Bacon's point had been that if the work had not been done by Websters, the insurer would have had to do it. Mr Morgan explained that if the insurer had not done the work Richards Butler would have done so. No one could have complained in principle. The work would have involved Richards Butler assembling documents or assembling the information and going through the disclosure. On Mr Bacon's submission, where there was a small client who did not have the resources or a disorganised client it was possible to instruct a solicitor and the work was recoverable. By contrast where there was an efficient client who did the work at lower cost than a solicitor it would not be recoverable.
- Websters were not the client and therefore not within the strict test of Richards & Wallington and Re Nossens. With regard to Amec Mr Morgan submitted that Websters were neither the client nor the solicitors. They were a professional skilled marine recovery agent. The test was not: is this solicitor's work; or is it clients work but whether the instruction of these recovery agents in this case reduced the legal work required. If so it was recoverable in principle subject to reasonableness and proportionality. Websters work led to a reduction in the legal assistance required.
- Mr Morgan considered the item identified by the Defendants as not being recoverable which were set out in paragraph 22 of the Defendants' skeleton argument. Mr Morgan submitted that the first three all related to evidence. If done by a solicitor they would be recoverable in principle. He preferred to leave detailed submissions of these categories to the detailed assessment. He also submitted that paragraph 22.9 illustrated the utility of Websters. The issue arose during trial. The location and nature (whether diesel or petrol) of vehicles was relevant to the cause of the fire, for example the refuelling of a car. That work was recoverable in principle. It might not be recoverable through the application of some artificial rule which bore no relation to modern practice. In paragraph 25 of his judgment Cresswell J set out work said to have been done by Websters. Mr Morgan submitted that the list of work undertaken reflected the application of considerable professional skill, for example on package limitation, security and title documents.
- Mr Bacon responded to Mr Mogan's point that Richards & Wallington and Nossens should be ignored. The bill covered pre CPR and post CPR work. On Mr Morgan's analogy there might be two different tests. He disagreed with Mr Morgan's submission that the court should disregard the practice which had been adopted in regard to the recoverability of costs of the sort being dealt with here and in Richards & Wallington. It was important to distinguish issues of practice and procedure under the new rules and the development of the common law in the assessment of the reasonableness of the recovery of costs. Practitioners relied upon pre CPR cases such as Brush and Frascati on which Mr Morgan was also relying. Both parties here were entitled to rely upon pre CPR cases because they went to the development of the common law on recoverability and not post CPR procedure and practice. Mr Bacon relied upon paragraph 6 of the Amec judgment in connection with Mr Morgan's submission that the point had not been argued in the Admiral case. It reads as follows:
- Mr Bacon submitted that Judge Thornton appeared to be approaching the issue on the basis that neither party was contending that different approaches should apply. Mr Morgan had relied upon paragraph 11 in that judgment which reads as follows:
- Mr Bacon also referred to the recent Court of Appeal cases on the recoverability of additional liabilities and insurance premiums. In preparation for those hearings it was necessary to conduct extensive research into previous cases. That research was relevant to the submissions. He invited me to reject the submission that Amec was the only leading case in relation to the application of the Richards & Wallington principles. Richards & Wallington was a case heard on appeal and carried more weight than Amec. Richards & Wallington was supported by the Admiral judgment.
- Mr Bacon reiterated the point made in paragraph 2 of his skeleton argument in reply, namely:
- Work was only recoverable if it was capable of being recovered if done by the solicitors and was done more cheaply. It could be performed by a third party agency. In Amec v Stork the work carried out was described in paragraph 112 (see paragraph 74 above). It referred to Amec staff:
- It had always been the case that the preparation of visual aids, etc, were recoverable in principle. The work described in paragraph 112 did not fall into the category of work with which Richards & Wallington and Nossens were concerned. That was a better reason for the Judge allowing the work than to distinguish the other cases (Nossens and Richards & Wallington).
- In Factortame the work of Grant Thornton was again different to the work carried out by Websters. The work carried out by Grant Thornton was described in the headnote to the judgment at page 381 which reads as follows:
- Mr Bacon submitted that the work was not the same as the work undertaken by Richards & Wallington in Nossens or by Websters. Websters had not made savings to the costs that would otherwise have been incurred. Websters had conceded some 86-90 hours as having been duplicated with Richards Butler at £175 per hour. That ran contrary to Mr Morgan's submission that costs had been saved. On the contrary costs had been increased through this duplication. He developed this point by reference to the entry for 17 July 2001 in the Defendants Points of Dispute at page 46 in the detailed assessment bundle which reads as follows:
- Mr Bacon noted that Mr Morgan had made the point that Websters had double checked documents and they were skilled intermediaries with the client. Richards Butler's bill had been settled. The Defendants had paid for them to correspond with Websters. The Defendants should not have to pay for Websters (or their client) corresponding with Richards Butler. That was not consistent with or conducive to saving costs. Allianz were sophisticated insurers who could understand advice given by Richards Butler without the need for an intermediary to explain it to them. Websters were not the client but were intermediaries between solicitors and client for the client's benefit. They were described in Richards Butler's bill on page 3 as agents. In Mr Sharma's third witness statement at paragraph 16 (page 566) they were described as being agents. Websters work was largely at paralegal status charged at £175 per hour which was more than Richard Butler's assistant solicitor's rate for the initial period.
- Mr Bacon submitted that it was not appropriate at this stage to consider in any detail the work actually carried out by Websters. However it was important to understand what they were really doing. He offered as one example an entry which reads:
- Mr Bacon submitted that I may wish to consider resolving the issue on the basis that Websters were saving money (which they did not appear to be doing) or on the basis that the category of work undertaken by them fell within Richards & Wallington or Nossens Patent.
- Mr Morgan responded to Mr Bacon's submissions on paragraph 6 of the Amec judgment where he had referred to the fact that neither party had contended for a different approach on the facts of that case to costs incurred before and costs incurred after CPR. He was not submitting that neither side had contended that things had been changed by CPR. The judgment showed that the Judge found that they had. All that was being said was that there should not be a two part bill so that there could be a different treatment for pre CPR to post CPR. There was not a laxity on the part of the Applicants. That was the correct reading of the law. Firstly Biguzzi said so in the passage already referred to (see paragraph 82) above. It said the Judge at first instance must apply the CPR regime but must bear in mind when considering the conduct of parties that they were doing so under a different regime and tests to be applied under CPR. Secondly, the transitional provisions Practice Direction under CPR Part 51 paragraph 18 provided as follows:
- Mr Morgan submitted that a party could not get less money under CPR than was possible pre CPR. The approach adopted by the Claimant was consistent with the transitional provisions. Mr Morgan also observed that the Defendants did not accept that the involvement of Websters saved money for Allianz or for the paying party. The contrary occurred.
- Mr Bacon explained there would be a forensic analysis of the work done. Mr Morgan noted that it was facts based and should be dealt with at detailed assessment.
- Mr Bacon submitted that uplift was the most extraordinary claim. It appeared at page 18 of the bill and read as follows:
- Mr Bacon then referred to paragraph 45(iii) and paragraph 47(3) of Cresswell J's judgment which reads as follows:
- Mr Bacon submitted it was an hourly rate detailed assessment. There was nothing in the judgment or anything said by Cresswell J which indicated an uplift of 100% could be added. Mr Bacon submitted there was no proof that a 100% uplift had been agreed between Websters and Allianz. No evidence had been produced. He relied upon Mr Sharma's evidence at page 196 where he said that it would be "very very rare that we would uplift the invoice but it is more likely we would discount the invoice for reasons I described before." On that basis he submitted it was all the more important to make the position clear to the client.
- Mr Bacon submitted that uplift can reflect the care and conduct element of an hourly rate. That was not the case here because Mr Morgan had invited me to find a composite rate, namely a figure which included the B figure. The uplift referred to here was not an uplift B figure but some other uplift. Uplift also arose in success fees in CFA cases. It reflected a percentage of the base cost to reflect the risk to the solicitor not being paid, that is to say not winning the case. A fully compliant CFA was required under Section 58 Courts & Legal Services Act before the success fee was recoverable. The present fee was not such an agreement. This uplift was a third wholly unknown category of uplift. The Defendants understood it to be Websters greedy attempt to recover even more costs than they had claimed at an hourly rate in order to get them closer to their cap. In any event it was supporting a claim for the equivalent of a paralegal at £350 per hour which was a fee which exceeded the hourly rate of all the fee earners at Richards Butler. Mr Bacon referred to Mr Sharma's evidence at pages 177-178, 189 & 195 where he said his hourly rate was £175 per hour to which he would not expect to add any uplift or mark-up but rather might offer a discount if the claim was small (see para 104 above). At page 196 Mr Sharma had said it would be "very very rare" that there would be any mark-up on his £175 hourly rate for time and trouble work. At page 195 Mr Sharma agreed that uplift would be very rare and, at the top whack, especially at £175, was going to be the hourly rate. At page 197/98 he said the invoices were rendered on a time and trouble basis with, so far as he could recall, no uplift or up-push. In summary Mr Sharma's evidence was that he would not expect to render an uplifted fee on the hourly rates for a bill such as the 14 December 1998 bill. Mr Bacon drew comfort from an exchange between Cresswell J and Mr Priday (counsel for the Claimant) in which the Judge declined to express a view as to whether or not the Costs Judge would be entitled to take into account the fact that services were rendered on a contingency fee basis. That was an issue included in the provisional draft order. The final order (excluding that reference) was the order dated 18 October 2002 giving rise to the detailed assessment. Cresswell J had said (page 448):
- Mr Morgan submitted that it was clear from the exchange between counsel and Mr Priday that the matter of costs was one for me and not for the Judge. The order set out the background in paragraphs 2 and 3. Paragraph 4 referred to an hourly rate only in relation to the obligation of Allianz to identify the hourly rate in the bill. Paragraph 5(b) directed the Costs Judge to determine what was the appropriate [reasonable and proportionate] amount to allow in respect of Websters' properly recoverable services.
- Mr Morgan submitted that I must undertake a notional exercise which did not reflect an agreement made between any party in the real world. I must notionally assess costs which were charged on a contingency percentage basis. In effect I was being invited to do so by analogy with solicitor's costs. On that basis there was no reason why that analogy should not reflect what happened to solicitor's costs when they acted on a contingency basis. The Claimants drew an analogy with a CFA under which a percentage addition was added to whatever hourly rate was determined. A solicitor on a contingency basis risked not being paid or under an Aratra Potato agreement being paid less than he would otherwise be paid. That risk was covered by the uplift. In this case Websters undertook to perform a considerable amount of work for potentially little reward. They put in (and continued to put in) considerable work for a period of over 4 years under a percentage agreement. The more work they did, the less the return would be. Websters obtained a good return for Allianz particularly because the jurisdiction agreement gave them a very good limitation set of rules. Websters were taking a risk which was what contingency fees was about. They were entitled to recover an additional element to reflect the risk in the same way that solicitors could.
- Mr Morgan relied upon Mr Sharma's evidence at page 189A-C where it was clear that he was asked whether there would be a mark-up on a time and trouble basis, that is to say a responsibility type mark-up not a contingency fee uplift. On time and trouble (an old style contractual basis with mark-up) there was no contingency element. It was not a contract where Websters were allowed to charge at £175 per hour but on a contingency basis. That approach was supported by Mr Sharma's replies in re-examination at page 365 where he dealt with the effect of an hourly rate when acting on a contingency basis. He said it would be necessary to increase the rates substantially to reflect the value of the risk Websters were taking. It was irrelevant that Websters contingency arrangement did not comply with the statutory scheme under the CFA Regulations since they applied to those with a right of audience and a right to conduct litigation. That was a reference to the judgment in Factortame.
- Mr Bacon explained that Websters' bill included the costs of the trial in September and October 2002. Paragraph 9of the order dated 18 October 2002 reserved those costs to Cresswell J because it was dependent on offers which had been made and the outcome of the detailed assessment. In addition to the claim for time in attending four days of trial there was also a claim for preparation time which Mr Bacon had not yet analysed. All this work should be excluded. The bill also claimed work on the limitation point which also fell outside the scope of the order. After the first trial the First Defendant commenced a limitation action in the English Admiralty Court which was necessitated as a consequence of the findings in the first trial. It was settled by order dated 8 November 2002. Under paragraph 1 the action was stayed upon the terms of the agreement (6 November 2002) a copy of which was annexed to the order. Under paragraph 6 there was no order as to costs subject to Clause 6 of the agreement. That clause provided that there should be no order for costs in the limitation action save for a contribution of £6,595 towards the costs of Hyundai Merchant Marine Co Ltd (see tabs 11 and 12, pages 743-755). Mr Bacon referred to page 11 of the bill and page 6 of the document schedule where there was a reference to the limitation action. The entry on page 6 read:
- Mr Morgan explained that many of the items in the bill referring to the limitation point had been conceded. The principle still had to be dealt with. He relied upon paragraphs 2-5 of the order dated 18 October 2002. Cresswell J was there deciding what element of the services provided by the contingency fee agreement dated 14 September 1998 (page 580-81) were to be allowed. The focus was on the following elements:
- The focus was therefore on the agreement for Websters' services and what should be allowed in respect of that agreement. It was not tied up to an entitlement to costs under particular orders which post dated the agreement. Paragraph 9 of the order dated 18 October 2002 reserved the costs of the legal representatives. The provision of Websters' services under a single agreement which pre-dated any costs order distinguished them from, for example, an expert. The issue here was whether Allianz were entitled to anything in respect of Websters' services. The Defendants had argued they were entitled to nothing. Allianz in reliance upon 14 September 1998 agreement maintained they were entitled to be remunerated in respect of work done under the agreement for the costs to which they had been put. In answer to that point the Judge was directing what should happen. That was distinguishable from looking at later work the charge for which varied in the course of litigation. If it was a one off they were entitled to their basic entitlement with their 5%. The issue was what compensation should be given to Allianz for that 5% which they had incurred. The response under which the contingency agreement dated 14 September 1998 was actioned was found in paragraph 18 of the judgment. In the fax dated 9 December 1998 Allianz acknowledged by conduct that Websters were acting on a no cure no pay basis. The Judge referred in paragraph 19 to an acknowledgement of acceptance rather than of the terms.
- Mr Bacon submitted that the second trial was the determination by the trial Judge as to whether Websters could recover, by way of damages or costs, their fees in respect of the work undertaken in recovery for the first trial. Cresswell J had found that if they were recoverable at all they were recoverable in principle as costs not damages and he ordered Websters to set out what those costs were so that a Costs Judge could work out what was payable. In addition to that Websters had included the costs of the second trial, namely the costs of working out whether or not the costs were recoverable. That was a quantum leap beyond what the Judge intended. He had not yet made an order for the costs of the second trial. The arguments about the September agreement might be relevant depending on the outcome of this detailed assessment. The point might be taken that Websters were not entitled to the costs of the second trial because the September agreement did not make provision for it. The fee agreement related to the costs of recovery not a hearing where Websters were trying to determine whether or not they could recover their own costs. Cresswell J had reserved the costs of the second trial until he knew the outcome of the quantum of Websters first trial costs. All costs after the first trial should be excluded.
- Mr Bacon raised many issues about Websters' bill. They included:
- Mr Morgan raised many issues in reply. They included:
- Websters are a long established firm of claims handlers. They are one of the largest companies of its type and are market leaders. Their offices are located in Sidcup. The experienced claims manager, Mr Sharma, has claimed a basic hourly rate at £175 per hour. However, Websters have not produced a shred of information to support that rate. Mr Sharma has provided three witness statements. As Mr Bacon rightly pointed out, the second statement was intended "to assist in the resolution of the outstanding issues between the parties in respect of quantum" and the third statements was made "in order to clarify certain issues which have arisen in relation to the claimant's claim for the fees of W K Webster & Co." Mr Sharma revealed the fact that there was in existence a sixth or seventh draft about charging rates. It was not produced in evidence. He also explained that those responsible for managing the company (Mr Joannou, the partner, and Miss George, the general manager) were aware of the need to provide information. They did not give evidence, nor did they apparently sanction the release of relevant information. Such lack of input from them is a matter for concern and is unhelpful in identifying an appropriate hourly rate for Mr Sharma. To the extent that doubt arises, it must be exercised in favour of the defendants.
- Little guidance was given at the second trial as to the method of charging on a no cure no pay basis, except that it was subject to market forces. No evidence has been given about the basis for time and trouble work charging. That is surprising, since part of Mr Sharma's work was conducted on that basis. The provision of that information by the management of Websters would have been relatively straightforward. The case managers were informed verbally by the management of the rates which they should charge. The inference must be that some calculation, however rudimentary, would have been carried out and would have been available.
- Mr Bacon has submitted that the appropriate comparison would be a firm of solicitors within the area of the Croydon or Bromley Courts. He provided hourly rate figures for assistant solicitors and paralegals. Mr Morgan submitted that Mr Sharma's hourly rate should be £175, or at the upper end of the scale for an assistant solicitor.
- Mr Bacon has submitted that there should be a discount of one-third on any hourly rate to reflect the reduction which is made to the costs claimed by a litigant in person. He compared claims consultants to litigants in person. I see no basis in law for such a submission. It is not supported by the judgment of Potter J in Piper or in the former or current Rules. I reject that submission and prefer the submission of Mr Morgan on the point. I do not understand Potter J to have put a limit on the costs recoverable by non-solicitors. The point does not call for resolution by me because Mr Morgan accepted that Websters could not recover more than City solicitors, or more than Richards Butler would have charged for doing that work. That must be a reference to the basic charging rate without the further enhancement/uplift/"success fee".
- I have taken into account the submissions by Mr Morgan about the work carried out by Mr Sharma. My conclusion is that the work carried out by him was comparable to that of a senior assistant solicitor. He dealt with partners, assistant solicitors, para legals and trainee solicitors. I reject completely Mr Bacon's submission that Mr Sharma's work was comparable to that of a paralegal. Mr Morgan has correctly identified the level of work, responsibility and the other factors to be taken into account. Mr Bacon's submission on the schedule of agreed duplication omitted to take into account the duplication with partner and assistant solicitors.
- The parties agreed on the range of hourly rates which Cresswell J incorporated into his judgment. Mr Bacon has pressed for figures at the lower end of the bracket. Mr Morgan has pressed for the rate claimed, or something comparable. I have not been persuaded by Mr Bacon's geographical submission. The local court rates, like the rates for summary assessment of costs in cases lasting less than a day, are for guidance. They are not written in stone. It is necessary to take into account in this case the equivalent factors of CPR 44.5. Mr Bacon submitted that the undiscounted rate for an assistant solicitor in the Croydon area would be £120 for 1998/99 and £130 thereafter. Mr Morgan submitted that the rates should be between £142 and £189 for a Grade B fee earner. My understanding is that the rates used by Mr Bacon would have contained an in-built mark up of approximately 50%. Mr Morgan referred to rates of £150 for Grade 2 and £170 for Grade 1 with a mark-up. I believe his figures are inflated.
- It is not necessary for Websters' office to be located in the City. Websters have declined to provide any information to support the rate of £175 claimed by Mr Sharma, which is the upper bracket of the range of rates. I find that it is no coincidence that Mr Sharma has elected to claim that rate in the absence of any internal documents to support his rate. I note Mr Morgan's point that this issue was not put to Mr Sharma and that it was inappropriate to draw an adverse inference (paragraph 54). The reasonable rate for Mr Sharma, as an experienced claims manager, who is not a general manager or a partner, with offices in Sidcup, for the period September 1998 to May 2002 is above the Croydon rate of £120/£130 referred to by Mr Bacon. It is below the mid-point for an assistant solicitor at Richards Butler (£175). Websters had the opportunity to produce supporting information, but have failed to do so. In the absence of that information, and taking into account the respective submissions of Mr Bacon and Mr Morgan, I find that a reasonable hourly rate for Mr Sharma is £150 for the period during which Websters were instructed up to the date of the judgment in the first trial (September 1998 to May 2002).
- Mr Bacon has laboured the absence of time recording and the retrospective guestimate approach aided by a costs draftsman. While he accepted that Websters were not solicitors, he invited me to approach the absence of recording of time spent by analogy with the custom and practice of solicitors in particular and of the other professions, such as accountants, in general. He stressed that doubt must arise where there was the absence of any records. He relied upon three cases which held that, for solicitors, the absence of recorded information required the Court to take a cautious approach. Doubt must be exercised in favour of the paying party.
- Mr Morgan submitted that Websters were not solicitors and were not subject to the requirement or custom of recording time spent. The case law relied upon by Mr Bacon did not apply. Only very few queries had been raised on the hundreds of bills issued by Mr Sharma. The test was to consider what papers would ordinarily be kept on a claims recovery file.
- It is readily apparent that there was no discernible direction to staff on how to manage their files in order to charge fees on either a time and trouble basis or on a no cure no fee basis. Some of Mr Sharma's colleagues recorded time, but it was not universal practice. Where fees are claimed on a percentage basis, for example, architects, surveyors or even law costs draftsmen, my experience is that time recording is a secondary consideration. In this case the work had been carried out before a decision was taken to attempt to recover the work of Websters as either damages or costs. The horse had bolted before the stable door could be shut. The management of Websters may well have decided that the time taken to record time accurately was not necessary, since so few bills were challenged. It is nevertheless curious that it was not company policy to record time where work was conducted on a time and trouble basis and that apart from the undisclosed fifth or sixth draft, no written record existed of the hourly rates to be charged. The inference which I draw is that the operation of market forces enables Websters to maintain sufficient profit without the need to operate on a precise recorded time, plus charging rate for individuals basis. The lack of records is not an insuperable problem. I accept Mr Morgan's submission that the nature of the work and the basis of charging is clearly distinguishable from the custom of solicitors' offices. Accordingly, I derive little assistance from the cases referred to by Mr Bacon. At the detailed assessment, the work claimed must be assessed by reference to Websters' files, the points of dispute and any counter-proposals and the benefit of the doubt must be exercised in favour of the paying party. This issue must now be left to the detailed assessment.
- Mr Bacon stressed that it was Allianz who instructed Websters who, in turn, instructed Richards Butler. Websters undertook much work which would ordinarily have been conducted by the clients. He submitted that a majority of the work referred to in the judgment of Cresswell J was not recoverable in principle, since it was work ordinarily undertaken by the clients. Mr Bacon relied upon the judgment of Stanley Burnton J in Admiral Management. He submitted that unless someone was an expert at doing expert work instructed by solicitors, the work was irrecoverable. Work could not be recovered merely by handing it over to solicitors to undertake. That was what Websters had done. The test was whether it was expert work as undertaken in Nossens Patent (which was recoverable) or fact finding work as in Richards & Wallington (which was not recoverable). Where work was capable of being undertaken by Richards Butler, it was likely to be recoverable. That work would not include, for example, sifting the chassis numbers and bills of lading. Mr Bacon also relied upon the references to Websters being agents of Allianz (see paragraph 71). The cases to which Mr Morgan had referred eg, Biguzzi and Nat West Lombard Factors, involved procedural issues.
- Mr Morgan approached the issue from the standpoint that it would be extraordinary if no costs were recoverable under the order. Cresswell J had heard Mr Sharma's evidence and heard submissions over three and a half days. If there had been doubt, the Judge would have rejected the claim. Mr Morgan's principal point was that Nossens and Richards & Wallington had been overtaken by CPR and the judgment of Judge Thornton in Amec. In that judgment, the Judge placed reliance upon CPR 43.2(1)(a) under which Cresswell J had directed Websters' costs to be assessed. Judge Thornton specifically stated that these two cases had been decided under RSC and were of no assistance in determining the question under CPR. There had been a realistic finding that the costs of necessary work should be allowed if it had been incurred at less expense than would have been involved if done by solicitors.
- Mr Morgan disagreed with Mr Bacon's submission that the Amec judgment carried less weight than the Admiral judgment. Submissions which had not been made in the Admiral case had been made in the Amec case. That was in part due to a concession by counsel in the Admiral case.
- Mr Morgan's other main point was that the categories identified by Mr Bacon were too narrow for modern litigation. They did not take into account the trend in the real world towards diversity and specialism. One such example was the Factortame judgment which had been argued before Cresswell J. There, Grant Thornton had been engaged by the client and not by the solicitors. Mr Morgan supplemented information in that case derived as counsel in the case. He supported the submission by reference to the overriding objective in CPR 1 and the importance of proportionality. He submitted that the judgment of Stanley Burnton J in Admiral and Judge Thornton in Amec were judgments of the High Court. The judgment of Judge Thornton was to be preferred because full submissions had been made, whereas concessions had been made in the Admiral case. The Amec judgment was also the only authority on the impact of CPR on the interpretation of costs. Judge Thornton had held that pre-CPR cases were of no assistance in the determination of issues about costs.
- Mr Morgan also relied upon the judgments of Lord Woolf in Biguzzi v Rank Leisure plc and of Hart J in Nat West Lombard Factors Limited v Abis (which concerned the application of Ladd v Marshall Rules under CPR). In Biguzzi, Lord Woolf had endorsed the approach of Judge Kennedy that authorities decided under the old procedure should not be taken as binding or even persuasive upon the court and that the new order would look after itself and develop its own ethos. References to old decisions and old rules were a distraction. Similar observations were made by Hart J.
- Mr Morgan also submitted that since Allianz only had one relatively inexperienced employee dealing with matters in the South Africa office, the work would have been undertaken by Richards Butler.
- I prefer the submissions of Mr Morgan to those of Mr Bacon. The judgments of Judge Kennedy in Biguzzi was endorsed by Lord Woolf. Both Hart J and Judge Thornton have held that cases prior to CPR no longer have the binding effect which would prevail pre-CPR. I accept Mr Morgan's point that the category of cases has widened following the trend of diversification. The judgement in the Factortame case supports Mr Morgan's submission. It is clear from that judgment that Grant Thornton were entitled to recover costs for work which included playing a major part in gathering voluminous and complex evidence as to loss which could have been carried out by solicitors and that their involvement was cost effective (paragraph 78). I also accept Mr Morgan's submission that the Amec judgment prevails over the Admiral judgment for the reasons which he gave. The instruction of Websters by Allianz was proportionate. Much of the work undertaken by them could have been undertaken by Richards Butler. The issue of costs is in part procedural and in part based on common law. Both counsel have relied upon pre-CPR cases.
- I am unable to accept Mr Bacon's submission that the work is only recoverable when it is done by experts and that the cases relied upon by Mr Morgan only relate to procedural issues so far as costs are concerned. In this decision, I am not jettisoning all case law developed by judicial decision on the facts of real cases. I am accepting the modification which flows from the Amec judgment and the Factortame judgment.
- The introduction of CPR with the overriding objective and the concept of proportionality has shifted the consideration of costs towards a fresh interpretation. That is apparent from the judgments in Factortame and Amec. Nossens Patent and Richards & Wallington no longer apply. In paragraph 86, I have set out what Mr Morgan has submitted are relevant tests. It is not whether the work is solicitors' work or clients' work. It is whether the instruction of these skilled professional marine recovery agents in this case reduced the legal work required. In my judgment, that test has been met and work is recoverable in principle, subject to the reasonableness and proportionality tests. I accept that certain work reflected the application of considerable professional skill. Examples are the package limitation, security, title documents and work on the diesel/petrol fuel issue. That aspect has been taken into account in determining the hourly rate.
- I have heard submissions on various aspects of work carried out by Websters. I have concluded that Mr Morgan's submissions are to be preferred to those of Mr Bacon's on these issues. The parties must now consider their respective positions and make further submissions at the detailed assessment. My preliminary conclusion, based on the submissions made to me, and from the information set out in the 14th December 1998 invoice, the judgment, the evidence and the witness statements, is that Websters are entitled to recover more costs than the very limited costs referred to in paragraph 2 of the defendant's skeleton argument in reply.
- Mr Bacon had submitted that Websters were agents of Allianz because they had been described as such in, for example, Richards Butlers' bill. Richards Butlers' recoverable costs have been agreed and paid. Duplication between Websters and Richards Butler should not be allowed, since it was unreasonable and disproportionate on the standard basis. While Mr Bacon sought to draw comfort from the same or similar wording in the two bills, that point was easily met by the explanation that the same costs draftsman drew both bills.
- Mr Morgan submitted that the duplication had been taken care of in the duplication schedule. Work undertaken by the respective firms could be similar but, in fact, different tasks were performed.
- It was common ground that the issue was facts based and would require forensic analysis at the detailed assessment. This issue must now be resolved at the detailed assessment.
- Mr Bacon expressed great concern at the uplift of 100% on page 18 of the bill which was claimed "to reflect the terms of the "no cure no pay" agreement and general responsibility for the recovery actions taken by W K Webster & Co and risk elements reflected by the agreement." He submitted that the order of Cresswell J limited Websters to an hourly rate without "enhancement", i.e. to notional appropriate fees by reference to time spent and hourly rate alone. The claimants had accepted in their replies to points of dispute that hourly rates were composite. Furthermore, any enhancement was irrecoverable in the absence of a compliant agreement with Allianz. Solicitors could only recover a success fee if a fully compliant CFA was entered into. The claim for a 100% uplift was contrary to the judgment of Cresswell J and the Piper principles. It was a third type of enhancement which was wholly unknown. Mr Sharma's evidence was to the effect that uplift was very rare. Cresswell J had declined to express a view on the matter which he considered was best left to the Costs Judge (see page 448).
- Mr Morgan submitted that the issue of the added mark up was a matter for me and it had not been ruled out by Cresswell J. He submitted that the order as drawn directed the Costs Judge (at paragraph 5(b) to determine what was the appropriate [realistic and proportionate] amount to allow in respect of Webster's properly recoverable services. He explained that I must undertake a notional exercise which did not reflect an agreement made in the real world under which I must notionally assess costs charged on a contingency basis. The exercise was to be conducted by reference to solicitors' costs and a CFA under which a percentage was added to base costs to reflect the risk of not being paid. It was irrelevant that Websters' arrangement did not comply with the statutory CFA Scheme. Websters had carried out work for a period of four years on that basis.
- Mr Morgan pointed out that Mr Bacon had selected evidence by Mr Sharma which concerned time and trouble charging, whereas the charge here was under a no cure no pay arrangement. While uplift was unlikely on the former, it was not excluded from the latter. That was borne out by Mr Sharma's evidence on page 365. Mr Morgan relied upon the Court of Appeal judgment in Factortame, which upheld the contingency fee arrangement between Grant Thornton and the several claimants.
- Initially, Websters charged on a time and trouble basis. In paragraph 20, I have referred to the six invoices which were rendered. They were dated between 1st February 1999 and 21st September [1999] (see page 843/4). The total of these bills and the 14th December 1999 bill amounted to £64,007.79. I have noted from the Claimants' skeleton argument for the hearing on 23/24 September 2002 (page 591) that the second trial was concerned with the recoverability of:
- On 2nd September 1998, Mr Sharma wrote to Allianz because their salvage and GA exposure would terminate by virtue of their negotiated settlement with cargo owners. He said the case became more of a straightforward recovery case. He explained that for salvage and GA work it was not possible to charge on a percentage basis. He set out the bands of percentage charges (see pages 824/5). Allianz sent him a copy of the Lloyd's scale of fees for recovery purposes which was slightly lower. On the 14th September 1998, Mr Joannou wrote to Allianz and agreed, for this occasion, "to pursue this particular recovery on a no cure no fee basis with our fees of 5% of the recovered amount with disbursements in addition for your account." The new basis of charging appears to operate from the delivery of the bill dated 14th December 1998, in the absence of any dates or other information in their bill. That issue is one on which Mr Bacon put down a marker (paragraph 19). (See also paragraph 10.)
- I prefer Mr Morgan's submissions that Mr Sharma's evidence that uplift was rarely applied to time and trouble charging is correct and that Mr Sharma made clear that an uplift could apply to no cure no fee work. I reject Mr Bacon's submission that no further uplift should be applied. In my judgment there are three constituent elements in Mr Sharma's basis of charging, namely an element to cover running costs salaries and the like, a profit element and also a further factor to reflect the risk that Websters might not recover costs. I have dealt with the first two elements under Hourly Rates. I have not been persuaded that the exchange between Cresswell J and Mr Priday, the comments by Cresswell J referred to in paragraph 105 above, or the wording of the order, precludes any such enhancement or uplift. The arrangement was entered into between Websters and Allianz. I would expect the defendants to be aware of such an arrangement. It appears from Mr Sharma's evidence that such arrangements are common place within the insurance industry. The additional enhancement is not dependant upon the CFA Regulations. It is permissible by analogy with those Regulations.
- The exercise which has to be undertaken is, as Mr Morgan rightly points out, an artificial one. Under the Order, it is necessary for Websters to prepare a bill based, in part, on the hourly rate to apply to time spent so that the appropriate amount to be allowed can be ascertained in respect of Webster's services, which are properly recoverable in costs. The definition of costs is wide enough to embrace this additional risk factor element. The Court of Appeal in Factortame agreed that such an arrangement was permissible. The definition of costs is set out in paragraph 113 of the extract from the Amec judgment in paragraph 74 above.
- I hold that such an uplift or enhancement is recoverable by Websters to reflect the risk element. My provisional view is that 100% is too high, since the prospect of success did not appear to be at the 50% level under which a CFA would qualify for a 100% success fee. Furthermore, in his letter dated 2nd September 1998, Mr Sharma described the case as having become more of a straightforward recovery case. In his evidence Mr Sharma said that most cases settled without recourse to solicitors or the need to commence litigation (paragraph 50). I have not heard detailed submissions on the level of enhancement and so can make no ruling in this judgment. That issue must now be deferred to the detailed assessment. In principle, an enhancement or uplift is recoverable.
- Mr Bacon has submitted that paragraph 9 of the Order dated 18th October 2003 reserved to Cresswell J the costs of the second trial because it was dependent upon offers which had been made in the detailed assessment. The second trial took place in order to determine whether or not Websters recover their fees by way of damages or costs. On that basis, costs at the hearings in September and October 2002 and the preparation time must be excluded. Any work relating to the limitation action should also be excluded.
- Mr Morgan explained that many of the items in the bill referring to the limitation point had been conceded. He also submitted that the recovery of Websters' costs was not tied up to an entitlement under the Order dated 18th October 2002. It derived from the provision of Websters' services under the agreement which pre-dated any costs order. Cresswell J had given directions for the assessment of all such costs. In doing so, he took into account (in paragraph 19) the fact that the parties had agreed that the terms of the fax dated 14th September 1998 had been accepted by Allianz by conduct on or about 9th December 1998. Websters had also incurred costs in relation to the second trial. He submitted that the Order only reserved the costs of the solicitors.
- I prefer the submissions of Mr Bacon to those of Mr Morgan. I am not persuaded that the agreement between Websters and Allianz entitles Websters to recover their further costs after the first trial in the absence of a specific Court order. Paragraph 9 of the Order dated 18th October 2002 specifically reserved the "costs of and occasioned by the trial on 23 and 24 September and 1 and 2 October 2002" to Cresswell J. There is nothing in the Limitation Order dated 8th November 2002 or the Agreement dated 6th November 2002 which provides to the contrary. Websters must await the outcome of the detailed assessment. Thereafter, the matter must be referred back to Cresswell J in accordance with the Order.
Master Seager Berry
"The question whether the First Defendants are liable to the Claimants for the fees of W.K. Webster & Co, and, if so, the quantum of those fees. "
"a long-established company which provides (among other things) the services in relation to marine casualties, including work in relation to salvage and general average issues ('salvage/GA work') and recovery services, being work to obtain a recovery from the appropriate party, usually the contractual carrier or owner of the vessel ('Recovery Work'). "
(1) Hourly rates (point of dispute 1). (Paragraphs 11-60).
(2) Estimated times (point of dispute 2). (Paragraphs 61-64).
(3) Are the costs recoverable in principle – the "Richard & Wallington Plant Hire " points (point of dispute 3). (Paragraphs 65-100).
(4) The duplication with Richards Butler's time (point of dispute 3). (Paragraph 101).
(5) Claim for uplift (point of dispute 4). (Paragraphs 102-108).
(6) Inclusion of parts falling outside ambit of 18 October 2002 Order (point of dispute 5). (Paragraphs 109-112).
(1) HOURLY RATES
Mr Bacon's Submissions
"Salvage/GA work is usually charged on a time and trouble basis. The agent will charge on the basis of an hourly rate for the individual claims handler, according to the amount of time spent. These hourly rates vary, but will certainly be less than London City solicitors' fees for doing the same work. They will be in the approximate region of £40 - £175 per hour depending on the firm of agents instructed and the seniority of the claims agent involved. "
(a) Time and trouble. That reflected an hourly rate times time expended.
(b) No cure, no pay was equivalent of a contingency fee. It was not equivalent to a CFA, which was a legitimate agreement where the base costs would be subject to a percentage uplift. Websters' fee was dependent upon 5% of the total recovery, not a base fee.
"We are requesting a breakdown of the £32,400 invoice by Websters on 14 December 1999. We shall revert with further details upon receipt. " (page 865)
No information was ever provided in spite of Mr Sharma's evidence that he had inspected his files. Accordingly there was no supporting information for the invoice. Mr Sharma's evidence was to the effect that he went to his files (presumably the files lodged for the detailed assessment) and estimated the amount of work he did. That submission was supported by the replies to the points of dispute.
"2. Estimated time
The submission made that all the time has been estimated by the costs draftsman is incorrect. Some of the time is taken from the estimates provided by Mr Sharma at the trial hearing. The process adopted in preparing the bill of costs was that the costs draftsman prepared the initial draft bill and that was then sent to Mr Sharma for his consideration. The costs draftsman and Mr Sharma then considered the draft bill in detail together and the bill was amended to take account of Mr Sharma's personal recollection of the work involved. For the record, this resulted in the time initially estimated by the costs draftsman being both reduced as well as increased, depending on the views of Mr Sharma. Mr Sharma also pointed out during this process that although he felt that the overall time claimed was a substantial underestimate of the time actually spent, he was unable to provide, with any real confidence, further specific examples of where the estimated time was too low to allow further time to be claimed. This is hardly surprising in view of the amount of time that has elapsed since the work was done. As the defendants have pointed out, there was no obvious record of the time spent by recovery agents at the time the work was under-taken; however, this is not a reasonable ground for disallowing the time claimed (see Re Frascati [1981] unreported). In fact, prior to the use of proper time recording methods now routinely employed by most solicitors, time was invariably estimated by the costs draftsman and was routinely allowed, even in the absence of proper attendance records. The recovery agent's time should not be disallowed purely because of an absence of time records that do not exist because the keeping of detailed time records is not a usual requirement for claims for recovery agents at this time."
"A. Yes, I go through the file. Depending on what sort of quantum we are looking at, broadly speaking, go through and make a narrative of what we did and make an evaluation of how long we spend doing it, and we would then, you know, consider if there is a reason for discounting and we would estimate, you know, a reasonable fee.
Q. You say you estimate a reasonable fee?
A. We would arrive at a reasonable fee based on the, you know, past experience that we have had. "
Later on Mr Sharma said at page 186:
"A. I flick through the correspondence. I mean, obviously if .. I have already read it once and dealt with it once and doubtless I have re-read it a number of times whilst dealing with the case, so all that is required, I do not need to painstakingly read every word, just refresh your memory, you know, read as much as you think you need to read to make your evaluation. "
"A. They have regard, I would guess, to commercially what the market will be prepared to pay, what the relevant experience and abilities are of the claims handlers, and I think those would be the broad basis. "
Mr Sharma said there would be a range of rates within a department. He was unable to identify who set the rates (Mr Joannou or Miss George) which were communicated to claims handlers verbally (see page 188). He was also unable to assist on what enquiry, if any, had been made by Miss George to ascertain what internal documents existed from which hourly rates were determined. Mr Sharma accepted that he knew enquiries were being made. Mr Bacon noted that the claimants were claiming the highest rates without any supporting information such as calculations on comparable bases to what might be charged by solicitors. Mr Bacon accepted that Cresswell J had commented at pages 360, 372 and 382 that he did not have the benefit of an independent witness. Mr Sharma had been called to support the claim for a 5% success fee (page 360).
"Plainly, Order 62, Rule 18(1) envisages that a litigant in person cannot recover more than it would have cost if the services of a solicitor had been employed: paragraph (2) which limits the amount allowed in respect of any item (save for any disbursement) to two-thirds of a solicitor's costs against proper charge, is a rule of thumb measure aimed at deducting the profit element in the solicitor's bill. By analogy it may be thought appropriate that the fees of a claims consultant, whether charged on a fixed basis, or by the hour, or as a basic fee plus a percentage, should be taxed so as to produce a result which removes the de facto protection hitherto afforded to a paying party by the unspoken assumption in Order 62 that a solicitor's reasonable charges (subject to taxation) represent the maximum amount of costs recoverable. "
"RSC Order 62, Rule 18
(1) Subject to the provisions of this Rule, on any taxation of the costs of the litigant in person there may be allowed such costs as would have been allowed if the work and disbursements to which the costs relate had been done or made by a solicitor on the litigant's behalf together with any payments reasonably made by him for legal advice relating to the conduct of or the issues raised by the proceedings.
(2) The amount allowed in respect of any items shall be such sum as the taxing officer thinks fit but not exceeding, except in the case of a disbursement, two-thirds of the sum which in the opinion of the taxing officer would have been allowed in respect of that item if the litigant had been represented by a solicitor.
CPR 48.6
(1) This Rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.
(2) The costs allowed under this Rule must not exceed (except in the case of a disbursement) two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative. "
"Summary
| Fee earner | Time | |
| Total of partner time to 30 April 2001 | 63 hours 57 mins | |
| Total of partner time after 30 April 2001 | 87 hours 23 mins | |
| Total of partner time after 30 April 2001 | 13 hours 34 mins | |
| Total of assistant solicitor time to 30 April 2000 | 89 hours 36 mins | |
| Total of assistant solicitor time to 30 October 2000 | 75 hours 19 mins | |
| Total of assistant solicitor time to 30 April 2001 | 62 hours 10 mins | |
| Total of assistant solicitor time after 30 April 2001 | 197 hours 12 mins | |
| Total of assistant solicitor time after 30 April 2001 | 33 hours 41 mins | |
| Total of assistant solicitor time after 30 April 2001 (LDC) | 5 hours 5 mins | |
| Trainee time | 253 hours 50 mins | |
| Legal assistant time | 12 hours 25 mins | |
| Cost draftsman time | 10 hours 3 mins" |
| Partner (CAB admitted 1983) | |
| Up to 30 April 2000 | £285 |
| Post March 2000 | £290 |
| Assistant solicitors | |
| (JPWG admitted 1996) | |
| Up to 30 April 2000 | £155 |
| Up to 31 October 2000 | £170 |
| Up to 30 March 2001 | £175 |
| Post 1 May 2001 | £195 |
| (LCD admitted January 2001) | |
| Post 1 May 2001 | £185 |
| Trainee solicitors (various) | £130 |
| Cost draftsmen | £140 |
Mr Bacon noted that the assistant solicitor JPWG was charged at figures below £175 prior to 31 October 2000 and the trainee solicitor was charged at £130 throughout. Mr Sharma claimed £175 throughout when he was not a partner, a general manager but a claims handler with eleven years experience. Furthermore the legal work had been primarily dealt with by Richards Butler, who had been paid for that work. There had been admitted overlap with work undertaken by both Websters and Richards Butler.
Mr Morgan's Submission
i. It was a mistake to analyse or approach the charging methods and charging rates of marine recovery agents such as Websters by applying standards which had been developed over the years by solicitors.
ii. It was and always had been the claimants' case that they were not trying to recover in respect of Websters' work any more than it would have cost a London City solicitor to have done the work. That picked up the passage at the end of the judgment of Cresswell J.
(a) He was supervising three claims handlers and three assistant or support staff.
(b) In a period of over four years he has personally handled over 100 casualties.
(c) Under a recent reorganisation he now supervised all the larger losses over £0.5m except those that were handled by Miss George. There was another assistant manager in the department.
(d) He personally handled 32 out of about 50 losses over £0.5m for which recovery was being pursued and was supervising another 14 of the remainder.
(e) There was only one case (this case) involving solicitors in the UK (London).
This work reflected responsibility for the major losses handled by Websters. The present claim was the largest (some £8m-£9m recovered), the next being about £5m and about 50 losses above £0.5m (page 167). Mr Morgan submitted that Mr Sharma had significant responsibilities which were consistent with his charging rate at £175 per hour as an experienced case handler (page 188). Mr Sharma had 11 years' experience as a recovery agent which included time with a PI club and at Dolphin Websters (page 349).
(a) Mr Sharma's seniority in Websters and the responsibility given to him and the complexity of the work undertaken.
(b) His 11 years' experience.
(c) The work carried out as referred to in the bill dated 14 December 1998.
(d) The work set out in paragraphs 12-14 of Mr Sharma's third witness statement.
(e) The existing claim which settled for between £8m and £9m.
(f) The work described in his evidence.
"A second preliminary issue has been stated as follows:
'2. If the court does have power to allow amounts for the costs so incurred by the unqualified person in relation to the conduct of the arbitration, are those costs to be allowed or to be assessed on the basis set out by Master Hurst in William Tarr & Co Ltd v Royal Insurance plc (8 April 1989, unreported), that being that the costs recovered cannot, by virtue of Rule 28(1) of Order 62 be more than the amount recoverable had the arbitration been conducted by solicitor and counsel and, if not, upon what basis should they be assessed or allowed.' "
Potter J said he was unable to answer the question since it was too generally phrased to be susceptible to clear answer (see judgment page 266). Mr Morgan accepted Mr Bacon's point that it would be surprising if the court allowed a greater rate for a claims consultant than would have been allowed for solicitors doing the same work based on the principle of reasonableness and proportionality.
i. whether it would have been cheaper for Richards Butler to have been instructed at that time, and
ii. once Richards Butler had been instructed, would it have been cheaper for Richards Butler to have done the item of work in question or Websters?
If it had not been cheaper for Richards Butler to have done the work, there was no reason to disallow the rate claimed by Websters.
| Grade C | £137 |
| Grade B | £142 - £189 |
| Grade A | £189 - £221 |
It was inappropriate to treat Mr Sharma as a paralegal because he was not a qualified solicitor. His lack of qualifications in a profession to which he had no claim was irrelevant. His fee should reflect his experience and responsibility as a claims manager with minimal supervision or recourse to solicitors. It had been agreed between the parties that the majority of claims were settled without the need to instruct lawyers or commence litigation (see paragraph 2 of the agreed issues at page 638). In his evidence Mr Sharma said there was very little supervision of him by Miss George or Mr Joannou (see page 173A). If a comparison had to be made with fee earners in a solicitor's office, Mr Morgan submitted that the rate should be at the upper end of the scale.
Mr Bacon's Submissions in Reply
"These hourly rates vary, but will certainly be less than London City solicitors' fees for doing the same work. "
Mr Morgan's Responses
i. Mr Bacon's submission that the Judge intended at paragraph 30(1) of his judgment that the rate to be applied should be less than London City solicitors. That paragraph fell under a heading "Market Practice" and followed word for word the agreed issues (page 637). There were no further overtones to what the Judge had said.
ii. Mr Bacon's point that in accepting a comparison with Richards Butler's assistant solicitors, the Claimants pitched their comparison too high because in the duplicated schedule the Claimants conceded duplication with trainee solicitors. He referred to page 84 in Websters' bill folder where at item 95, agreement had been recorded at 1 hour 27 minutes for duplication with a trainee solicitor. All the other concessions concerned the partner and/or assistant solicitor with trainee solicitors. A further example appeared at item 85 (page 78) where Websters had claimed 1 hour 30 minutes. Against that a concession had been made by Richards Butler as to 6 hours 21 minutes trainee solicitor time but not the 5 hours 46 minutes claimed by the assistant solicitor. Mr Morgan submitted that it was not appropriate to cherry pick at trainee solicitor and not partner level.
iii. Mr Morgan referred to the reference in paragraph 11 of his skeleton argument that Websters were one of the top firms in their profession. That statement was supported by the judgment at paragraph 6 when the Judge referred to Websters being long established and by Mr Sharma's evidence at page 152 where he described it as one of the largest companies of its type and market leaders. The reference to Websters being likely to have to pay top rates regardless of location was one of inference.
(2) ESTIMATED TIME
Mr Bacon's Submissions
"In my judgment, in the light of the approach of Parker and Evans JJ in more recent cases, claims such as this [for unrecorded time] are likely to be viewed with very considerable care and it would only be in an unusual case that any substantial allowance should be made for unrecorded time. "
Clearly some unrecorded time was recoverable. Care must be taken in determining the amount to be allowed.
Mr Morgan's Submission
Mr Bacon's Response
(3) RECOVERABILITY IN PRINCIPLE
Mr Bacon's Submisisons
i. 22.1 Participating in investigations leading to the obtaining of statements given by the crew to the local police. (Item 1 of Cresswell J list)
ii. 22.2 Initial investigations were conducted into the factual background of the claim. (Narrative to bill of costs)
Mr Bacon submitted that such costs were not recoverable in principle. Mr Morgan submitted that the work concerned evidence and was therefore recoverable in principle.
iii. 22.3 Generally assisting where necessary and generally collecting, sorting and collating evidence: thereafter obtaining documents for disclosure (Narrative page 3)
Mr Bacon submitted that such work was outside the remit of work undertaken by the solicitors.
iv. 22.4 Providing a power of attorney on behalf of our Principals for Richards Butler to present to the Sharjah authorities in respect of their investigations there. (Item 4 of Cresswell J. list)
Mr Bacon submitted that this was background work undertaken by the clients and was therefore not recoverable.
v. 22.5 Conducting extensive searches for files including cargo claims settlement files. (Item 5 of Cresswell J. list)
vi. 22.6 Searching files for and obtaining direct from cargo owners and/or insurers, cargo documents evidencing title to sue and the quantum of the loss of more than 125 bills of lading and more than 1,000 vehicles for at least seven underwriters. (Item 8 of Cresswell J. list)
vii. 22.7 Carrying out search for documents in all of the files contained in our offices, including cargo claims settlement files. Sorting files and forwarding to Richards Butler. (Item 9 on Cresswell J. list)
viii. 22.8 Providing copies of all the casualty reports available. (Item 10 of Cresswell J. list)
ix. 22.9 Extensive investigations as to the mechanical arrangement relating to Toyota Hiace vans, a careful examination of all the chassis numbers in the manifest to determine which were petrol and which were diesel including discussions with Toyota UK and visits to the dealer. (Item 13 of Cresswell J list)
"determining the preliminary issue in favour of the claimant, that the words "of and incidental to" in the consent order refer to the court's discretion to award costs conferred by Section 51 of the Supreme Court Act 1981 and CPR 44.3; and that costs incurred from the time when the claimant reasonably suspected that the defendants had committed or were committing the wrongs that subsequently became the subject of a claim were within that discretion; that that principle applied notwithstanding that some of the costs were incurred before the claimant instructed a solicitor; that although in general the work of a litigants' employees in investigating, formulating and prosecuting legal proceedings did not qualify for an order for the payment of costs of and incidental to those proceedings, there was an exception in the case of the reasonable, actual and direct costs of work conducted by the employees of a litigant which, if done by an expert who was not an employee, would have been recoverable as a item of costs; but the exception was not limited to actions for patent infringement but applied to litigation involving claims for wrongful use of confidential information; and that, accordingly, dependent on whether the claimants employees were truly experts and of the nature of the work they carried out, the reasonable costs on all the work they did in relation to the claim were recoverable. "
"In general, however, I cannot in this judgment reach a decision as to whether the employees of the claimant were sufficiently qualified to be experts, or whether individual items of their work constituted work of an expert nature so as to qualify as the subject of a costs order. The witness statement of Mr Ayres, the second defendant, gives powerful reasons why most of the work that is the subject of the claimant's contentions does not so qualify, and indeed why some of the claimant's staff involved were not experts. These questions are for the next stage of these proceedings. "
"As is often the case, had recovery agents not been involved insurers would themselves have had to undertake much or all of the work, with the assistance of other specialists, no doubt at far greater expense than our fee. The work that we undertook was, therefore, of great importance to Allianz South Africa who only had one employee dealing with marine claims at that time. "
Mr Morgan's Submissions
"112. Amec engaged its own personnel and agency staff to undertake much of the work involved in collating, analysing and presenting the primary evidence and the supporting evidence of Mr Prudhoe. These personnel also undertook much of the preparation of the visual essential aids such as isographs, histograms, graphs, bar charts, photographs, tables, as built programmes and overlays. Had this work been undertaken, at greater expense and with the use of many more hours of time, by legally qualified personnel employed by Masons, as Amec's solicitors, this work would in principle be recoverable. However, Stork maintains that it is irrecoverable in principle because of the impact of the Richards & Wallingford case decided in 1984 and the even older case of Re: Nossen's Patent. Both cases, having been decided under the RSC, are of no assistance in determining this question under the CPR even if the wording of the relevant rules is similar.
113. CPR 43.2(1)(a) defines costs as including:
"Fees, charges, disbursements, expenses, remuneration … "
In principle, the time charges involved in employing these personnel fall within each of these categories of costs. It is a matter for detailed assessment whether the tasks performed, on an hour by hour basis, the number of hours claimed, the personnel involved and the hourly rate or other disbursements, were incurred at all and, if so, were properly and reasonably incurred. However it would be contrary to the overriding objective if necessary expenditure which was incurred at less expense than would have been involved had Amec's solicitors employees undertaken the work, was not recoverable in principle.
114. I find the claim of expenditure is recoverable in principle. "
Mr Morgan noted that the CPR Rule quoted there was the one under which Cresswell J had directed the costs of Websters to be referred to a Costs Judge.
"Costs
12. The issue raised by paragraph 1.1 of the order is whether and to what extent may the claimant company recover by way of costs sums in respect of the time and work of its own employees.
13. The claimant concedes that in the ordinary way a company cannot recover by way of costs any payment for the time of its employees engaged in investigating or prosecuting its claim. It contends that some of its employees were experts in the field of computers, and that it is entitled to recover sums for their work in connection with the claims against the defendants. It also contends that its employees provided expert services in determining whether documents found on the defendant's computers were the claimant's documents or copied or derived from its documents or contained the claimant's confidential information.
14. The defendants dispute that they have accepted liability for the costs claimed. They deny that costs may be awarded in respect of the time of a company's expert staff working on a claim. In addition they dispute that any of the staff in question were experts for this purpose. They dispute that the level of expertise involved was sufficient to qualify them as experts. It was also submitted on their behalf that, since none of them would or could be called as expert witnesses in the proceedings, on account of their lack of independence, accordingly, nothing could be recovered for their time or work.
The items of costs recoverable
27. As I mentioned above, the claimant accepts that in general the work of a party's employees in investigating, formulating and prosecuting a claim by legal proceedings does not qualify for an order for the payment of costs of and incidental to those proceedings. The claimant relies on the exception to that general rule described in Re Nossen's Letter Patent [1969] 1 WLR 638. "
"28. The bill of costs prepared by Thomas Cooper starts with a narrative which includes the following description of the role played by Grant Thornton;
"The firm of Grant Thornton chartered accountants were appointed by the applicants and their solicitors to advise on, co-ordinate and play a major part in the gathering of voluminous and complex evidence as to loss, particularly that within their expertise as chartered accountants. Grant Thornton were also instrumental in the appointment of the independent experts instructed and again played a major part in the assisting and liaising with those experts and also with solicitors and counsel. Grant Thornton worked closely with the experts to create the original model for calculating the losses claimed. Grant Thornton made a considerable number of modifications for the model and created several different versions to accommodate the various contentions and arguments. Grant Thornton were engaged throughout in a supporting and advisory role to the [claimants] and their legal representatives. Grant Thornton's involvement was also very cost effective, as overall their charging rates were significantly lower than Thomas Cooper and Stibbards rates and it will be appreciated that Thomas Cooper and Stibbard would have had to carry out all the work undertaken by Grant Thornton if Grant Thornton had not been involved. "
29. We consider that this is an accurate summary, subject to one comment. Grant Thornton's work consisted largely of important backup services for the two independent experts, Mr Banks and Mr Anton. Many of these services, such as the collection of documentary evidence and liaison with the clients in Spain could have formed part of the services provided by Thomas Cooper themselves. Most of the services would, however, more naturally formed part of a package of forensic accounting services which would have included the provision of the expert evidence itself. It was only the fact that they considered that they were precluded by their interest in recovering their outstanding accountancy fees from their clients damages that led Grant Thornton to engaged Mr Anton as an independent accountancy expert. "
"86. Our view of the 8% agreement was that it should have appeared attractive not merely to the claimants but to the Government, who would ultimately be liable to pay the costs if the claims succeeded. The Government would, in any event, only be liable to pay reasonable costs, which would be likely to be assessed on an hourly rate basis. Thus, for the Government, the 8% would be likely to operate as a cap. "
"1.1 (1) These rules are a procedural code for the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with the case justly includes, so far as is practicable –
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party."
"It is with regard to the Judge's approach to the previous authorities that Mr Shaw makes particular complaint in his helpful submission to this court. He submits that, certainly in relation to a transitional case, the Judge's approach was wrong. All the Judge said in his judgment on this matter to which Mr Shaw takes objection, was:
"It is my firm belief that authorities decided under the old procedure should not be taken as binding or probably even persuasive upon this court, any more than looking back to the old rules to interpret the new should be so. This is a new regime. "
He added:
"I very much doubt whether any of the old authorities can assist, although it is perfectly true, as counsel both pointed out to me, that in some of the later striking out cases, and I do not propose going through them for the reason I have just expressed, there were foreshadowings and expressions of view as to how things might be under the new order. I have to say that this court's view, after extensive training and good deal of discussion and thought, is that the new order will look after itself and develop its own ethos and that references to old decisions and old rules are a distraction. "
He continued
"We now have to decide what is going to happen and we shall. We will not, I repeat, look over our shoulders. If the Court of Appeal try and tell us Judges at first instance that we must look over our shoulders in any way at all, we will just have to find ways of adjusting our wing mirrors. "
He went on to consider the central issue which he identified as being "is there anything unfair in letting this case go to trial? That is really the issue I have got to look at. The Judge then sought to apply the CPR. "
"Accordingly this might be thought obvious that the interpretation placed upon those words in Ladd v Marshall should apply equally to schedule 1 to the Civil Procedure Rules.
His Lordship said that that was not necessarily the case. Because of the imperative contained in Rule 1.2 of the new Rules the principles of interpretation by which those Rules were to be interpreted were not the same as those applied by the Court of Appeal in Ladd v Marshall.
Accordingly, even where provisions were identically worded, the old Rules could not necessarily be followed in interpreting the new. "
i. Websters were doing work which Richards Butler would otherwise have had to do, for example disclosure, double checking documents particularly the quantum claim and locating the car carrying shipping expert.
ii. They were a skilled and knowledgeable intermediary with the client and thereby saved the need for Richards Butler to spend time explaining matters to a lay client.
Mr Bacon's Further Submission
"6. In this case, neither party contended that I should approach the pre April 1999 costs in any different fashion to those incurred since or that there was any appreciable difference between pre April 1999 costs and post April 1999 costs. This was important since a significant proportion of Amec's costs that were incurred which were the subject of discussion, such as the costs of Amec's employees engaged in the evidence preparation, might have been subject to different considerations in the pre 1999 period … "
"11. I have already stated that it is not usually helpful to refer to costs cases decided under the RSC costs regime when applying the replacement CPR costs regime to the facts of a particular case. This can be seen from this passage of May LJ taken from Reid Minty (A Firm)'s case:
"Being a new procedural code, the Rules are not to be taken as embodying or taking on board the baggage of the old Rules; and generally speaking, although there are exceptions most of the procedural cases decided under the Rules of the Supreme Court (or indeed the County Court Rules) are not of relevance – or certainly not of central relevance – to an interpretation of these new Rules. "
This is salutary advice to a judge sitting at first instance, particularly when the costs issues that must be dealt with arise in a complex or unusual case or involve considering the conduct of particularly complex and difficult litigation. Such an unusual case highlights, and does not lead to a departure in any way from, the need to apply the overriding objective and the principles applicable to considerations about costs undertaken under the costs regime imposed by the CPR. "
Mr Bacon's point was set out in the words in italics. Lawyers conducting litigation would accept that procedurally it was "all change". A new regime came into play in which procedural cases were no longer of central relevance. The Court of Appeal was saying there should be a new start which reflected the overriding objective. Judge Thornton then took a quantum leap by saying in paragraph 113 (see para 74 above) that the previous cases of Richards & Wallington and Nossens were of no assistance. Nossens Patent did not apply to procedural matters. Mr Bacon submitted that Judge Thornton was wrong to make this quantum leap in relation to fees which was not a procedural matter. The Biguzzi judgment dealt with the court's power to strike out under the procedural rules. The Arbis case involved the interpretation of the new rules, namely Rule 59.10 (appeals) which concerned procedure. Different rules applied under CPR on practice and procedure. Part 44 of the Civil Procedure Rules (edited by the Senior Costs Judge) contained many CPR cases on reasonableness. Mr Bacon submitted that it was unwise and unreasonable to jettison at a stroke all the case law developed by judicial decision on the facts of real cases under the system of common law on which Costs Judges had relied for many years. He accepted that the old cases should be taken into account on the standard basis. The new rule introducing proportionality still had the reasonableness test. Proportionality applied to reduce rather than increase costs. There was no reason to depart from the common law to date. It was a matter for speculation why counsel in the Admiral case did not take issue with the principles of Richards & Wallington and Nossens Patent. The Judge accepted the cases post CPR and was aware of the two cases. In Higgs v Camden & Islington Health Authority (Costs Law Reports 2003 Service Part 2 page 211) Master Rogers' application of the former A (expense rate) and B (mark-up) fallback approach was upheld on appeal although CPR provided for one composite figure. Lord Justice May's statement (in Reid Minty) was the only available judgment in the Court of Appeal dealing with the procedural position on the costs cases. In it he said that previous procedural cases were not of central relevance to the interpretation of the new rules.
"… the Defendants are prepared to accept (as they did before Cresswell J) that the Claimants may be entitled to some very limited costs. Where work has been undertaken by Websters, which would otherwise have been undertaken by Richards Butler (and recoverable if done by them) then subject to the other reasonableness issues (i.e. duplication, etc) in this assessment, the Defendants accept that the Claimants would be entitled to such costs … "
"… collating, analysing and presenting primary evidence and supplying evidence of Mr Pridhoe … and overlays. "
"also provided other services, ancillary to the conduct of the litigation by the Claimants solicitors, which would customarily have been provided by the solicitors, including the collection of documentary evidence, liaising with the Claimant in Spain and advising on offers to settle. "
"Further references are made to the bill of costs of Richards Butler and in particular the times claimed on page 24. Richards Butler's own costs were increased by virtue of the tardy and ineffectual production of the documents relevant to quantum by WK Webster.
Rather than hand over all their relevant files to Richards Butler prior to standard disclosure, Websters chose to sift themselves and provide them in a piecemeal fashion over a period of more than 12 months (which is reflected in the inter-solicitor correspondence). Clearly, Websters did not appreciate and understand the Claimants disclosure obligations. This arrangement increased the time and therefore the costs of Richards Butler. It is wholly inappropriate for WK Webster to seek to recover any of this time in producing documents, where the Defendants have already suffered an increase in their costs liability for Richards Butler's time as a direct result of WK Webster's involvement. Furthermore, the estimated times are excessive and/or this should have been regarded as client's work. "
"28.11.00 Perusing and considering files in order to locate documents relevant to cargo details and policy numbers. 20 hours "
Further Response by Mr Morgan
"18 Costs
(1) Any assessment of costs that takes place on or after 26 April 1999 will be in accordance with CPR Parts 43 to 48.
(2) However, the general presumption is that no costs for work undertaken before 26 April 1999 will be disallowed if those costs would have been allowed in a costs taxation before 26 April 1999.
(3) The decision as to whether to allow costs for work undertaken on or after 26 April will generally be taken in accordance with CPR Parts 43 to 48.
The Costs Practice Direction contains more information on the operation of the transitional arrangements in relation to costs. "
(4) DUPLICATION
(5) UPLIFT
Mr Bacon's Submissions
| Profit Costs | |
| Total fees | £83,868.70 |
| ADD: percentage uplift to reflect the terms of the "No Cure No Pay" agreement and the general responsibility for the recovery actions taken by WK Webster & Co and the risk elements reflected by the agreement – 100% | £83,868.70 |
| Total fees | £167,737.40 |
"45(iii) On my view of the agreement (for the reasons set out below) the defendants are protected to the extent that they are only liable to pay reasonable costs in accordance with the order set out below. I refer in particular to the protections and limitations included in paragraphs 1 and 2 and 4 of the order set out below. The detailed assessment under CPR 47 will no doubt be on an hourly rate basis. The 5% will of course operate as an upper cap, but I anticipate that assessment of costs in accordance with the order set out below will produce a sum far less than that which is admittedly payable by Allianz to Websters.
47(3) Allianz will serve a bill of costs in respect of the services performed by Websters for which it claims to recover costs in accordance with CPR 44.4(2), such bill to comply with Section 4 of the Costs Practice Direction (43PD4) and to set out in particular:
(a) the items of services claimed for;
(b) the amount of costs claimed for each item of the services claimed for;
(c) the time spent on each item; and
(d) the hourly rate claimed to apply to such time."
"… I doubt whether it would succeed because I would have thought the best guidance available is paragraph 86 at hourly rate basis ".
Mr Morgan's Submissions in Reply
(6) INCLUSION OF COSTS OUTSIDE THE AMBIT OF THE COSTS ORDER
Mr Bacon's Submissions
"19.02.02 Perusing and considering claim against limitation fund by other cargo claimants and preparing a schedule of cargo claim and package limitation breakdown by way of exchange. 4 hours"
The issue was also dealt with in the Points of Dispute. These costs should be excluded.
Mr Morgan's Submissions
i. Did Websters provide a service to Allianz?
ii. If so, was it under the agreement dated 14 September 1998?
iii. If so, was it a service properly recoverable in costs, i.e. was it a costs type service?
iv. If so, allow an appropriate sum.
Mr Bacon's Submissions in Reply
1. HOURLY RATES
Mr Sharma had provided three witness statements. The second and third statements were intended to explain/clarify Websters' basis of charging. Nowhere in those statements did he indicate the level at which he was charging. (Paragraph 15).
a. No documentary evidence had been provided to support the claims, for example, the tariff of hourly rates and none was produced in response to enquiries. (Paragraph 23).
b. The draft of hourly rates (in its sixth or seventh draft – see page 183 of transcript) – was not disclosed, although it was in existence.
c. Correspondence had been conducted between the solicitors seeking further information, but none had been forthcoming. Although Richards Butler stated in their letter dated 6th February 2002 that they had requested a breakdown of the December bill, none was ever received. (Paragraph 28).
d. Mr Sharma had adopted the highest hourly rate from the bracket of figures agreed between the parties prior to the trial and determined by the Judge in paragraph 30(1) of his judgment. (Paragraph 12).
e. No assistance could be derived from the time and trouble bill dated 14th December 1998. It was for a rounded up figure and was unsupported by any computation. (Paragraph 17).
f. Mr Sharma had conducted the claim initially on a "time and trouble" basis and then on a "no win no cure" basis, once Allianz had decided to pay out on the basis of constructive loss. (Paragraph 16).
g. The letter dated 14th February 1998 (signed by Mr Joannou) provided for a fee at five per cent of the recovered amount with disbursements in addition. It was nevertheless necessary to compute the fee by reference to an hourly charging rate and time expended. A decision would have to be given on the date from which the contingency fee applied (paragraph 19). It was not apparent to what extent, if at all, the five per cent figure was included in the costs claim. (Paragraph 22).
h. Although Mr Sharma gave evidence that he had inspected his files, he never produced a breakdown for the December bill. (Paragraph 20)
i. Mr Sharma had conducted a retrospective guestimate on time taken on which he received assistance from a costs draftsman. (Paragraph 21). Times were increased as well as decreased.
j. Mr Sharma was subject to minimal supervision (paragraph 23). He had no professional qualifications and was not subject to professional rules and controls (paragraph 33).
k. Only Mr Sharma's fees had been claimed in the bill, even though Mr Joannou and Miss George had also been involved in the claim. Mr Sharma was of the third rank and one of several claims handlers, subject to some supervision. (Paragraph 23). He claimed the top rate, but there was no evidence to support it by reference to, for example, solicitors' rates. (Paragraph 27).
l. Mr Sharma gave evidence that he would have charged £175 in 1998 and also in October 2002 (when he was giving evidence). That was the rate he would have charged Allianz. There would not have been a mark up on that figure. That was relevant to the claim for 100% mark up which appeared on page 18 of the bill. (Paragraph 24).
m. The computation of the fee had not been based upon an hourly rate since that was too precise. Mr Sharma made an evaluation after flicking, or quickly reading, the pages on the file. He was not obliged to keep time records. (Paragraph 25).
n. In essence, the fee was what commercially the market would bear. There was a draft in existence about hourly rates, but Mr Sharma was unable to state who set the rates which were communicated by Mr Joannou or Miss George verbally to claims handlers. Mr Sharma knew enquiries were being made about the level of charging rates, but was not able to provide information about it. (Paragraph 27).
o. The judgment of Potter J in Piper Double Glazing Limited v D C Contracts advocated that the fees of claims consultants in an arbitration were akin to those of a litigant in person and accordingly the fees should be reduced by one-third and must not exceed the costs of the solicitors doing that work. The previous and present Rules provided the "de facto" protection to which Potter J referred. Accordingly, there was an unspoken assumption that the solicitors' fees were the maximum sum which could be recovered under this de facto protection. Mr Bacon accepted that Potter J did not make a finding that the recovery of other costs was limited to those recoverable by solicitors. Websters were entitled to recover fees so long as they did not exceed those of a solicitor, irrespective of the factors applicable to evaluating fees. (Paragraphs 29, 30 and 32).
p. It was necessary to identify the appropriate equivalent fee earner in a solicitor's office and apply the one-third discount. That was consistent with what Potter J had said and with what Cresswell J said in paragraph 30(1) of his judgment. (Paragraph 33).
q. The appropriate comparable courts for determining the charging rate were Bromley and Croydon, based upon Websters' offices in Sidcup. If a solicitor did not agree an hourly rate with this client, the rate would be determined by reference to the local court's rates. City rates should not apply to Websters.
r. The schedule of agreed duplication established that much of the work carried out by Mr Sharma had been carried out by trainee solicitors or paralegals in Richards Butler's office. Page 11 of the documents schedule in Richards Butler's bill revealed that work during August 2000 had been carried out by an assistant solicitor. The summary of work set out on pages 38 and 39 of that bill showed that the majority of work had been carried out by assistant solicitors and trainee solicitors. The appropriate comparable level of fee earner would be a paralegal. The rates for paralegals in Croydon for 1998/1999, with the one-third discount, would be £53.00. If that was wrong, the appropriate rate for an assistant solicitor for 1998/99 with the one-third discount would be £80.00. Both figures were within the bracket referred to by Cresswell J. (Paragraph 34, 35 and 36).
s. Mr Sharma claimed at a rate which was higher than trainee solicitors throughout the period and above the rates of assistant solicitors prior to the 31st October 2000. (Paragraph 37).
t. Charging rates differed dependent upon location and reflected the apportionment of overheads. The nature of the work was largely irrelevant. Most of the work by Richards Butler had been undertaken by assistant solicitors and trainee solicitors and therefore the apportioned overheads would have been less than that applied to partners. (Paragraph 56). It was rates and running costs, rather than employing solicitors at the top of their profession, which caused City firms to have higher charging rates. (Paragraph 58).
u. It was disputed that Websters were one of the top firms in their profession. (Paragraph 58).
v. Mr Sharma had undertaken work on a relatively straightforward matter where there had been limited correspondence and exchanges over the telephone without protracted negotiations. Much work had been equivalent to that carried out by trainee solicitors or paralegals. His work was basically getting information and sorting it out.
(i) The charging rates of marine recovery agents such as Websters should not be approached by applying the standards which had been developed by solicitors over the years. (Paragraph 38).
i. The claimants were not trying to recover for Websters' work more than it would have cost a City of London solicitor to do the work. (Paragraph 38).
ii. The rate claimed by Mr Sharma was about the midpoint claimed by assistant solicitor JPWG. Broadly speaking, his rate should be based on the assistant solicitor's rates as a comparator. (Paragraph 39).
iii. Websters should not be penalised because Mr Sharma had not kept detailed time records in the way solicitors conducting litigation did. In certain professions fees were determined by the market and not by internal recording systems. There was no single method of computing fees. Solicitors apply the seven pillars of wisdom to a basic unit cost computed in accordance with the Expense of Time. Other professions adopted different approaches and applied different assumptions. The essential issue on Websters' fees was that certain work was conducted on a time and trouble basis, while a significant proportion of other work was carried out on a contingency fee basis, i.e. one which was not based on rates with a percentage mark up as in a C.F.A. (Paragraph 40).
iv. Mr Sharma's evidence had been directed to International Market practices. The Judge's comments about the lack of independent evidence was immaterial. (Paragraph 41).
v. It was immaterial that the bill dated 14th December 1998 did not contain any reference to an hourly rate. (Paragraph 42).
vi. The narrative to the bill dated 14th December 1998, the transcript evidence and Mr Sharma's third witness statement set out the nature of the work undertaken by Mr Sharma. He was a highly experienced claims manager with 11 years' experience. He had negotiated very favourable terms in relation to security with English jurisdiction with a senior partner. (Paragraph 51). He handed high-value claims under limited supervision and also supervised other claims handlers and assistants. During the preceding four years he had personally handled over 100 casualties. At the time of the second trial he personally handled 32 out of 50 losses over £½ million and was supervising 14 other claims. (Paragraphs 43-44).
vii. The charging rate of £175 per hour was commensurate with Mr Sharma's experience and responsibility. (Paragraph 45).
viii. The submission that a one-third discount by analogy to litigants in person was unsupported in law. In the Piper judgment, Potter J did not, as suggested by Mr Bacon, equate anyone other than a solicitor as a litigant in person. Mr Morgan accepted that the judgments said that a claims consultant would not be allowed more than a solicitor. A one-third reduction for litigant in persons was designed to remove the profit element from a litigant in person's bill, since a litigant in person should not profit from his litigation. Claims consultants, like others involved in litigation, were in business to make a profit. (Paragraphs 47 and 48).
ix. Location outside the City did not mean that Websters undertook work equivalent to that of a suburban solicitor. They were one of the top firms and would have to pay appropriate salaries for high calibre staff. (Paragraph 49).
x. The rates quoted by Mr Bacon should be increased by a mark up of at least 50%. Mr Sharma's lack of professional qualifications were no bar to charging an hourly rate to reflect his experience, expertise and responsibilities as a claims manager with minimal supervision or recourse to solicitors. Any comparison with solicitors should be at the upper end of the scale. (Paragraph 50).
xi. The concessions on duplicated work covered work undertaken by partners, assistant solicitors and trainee solicitors at Richards Butler. It was incorrect to "cherry pick" and to suggest that it only related to work undertaken by trainee solicitors.
2. ESTIMATED TIME
3. RECOVERABILITY IN PRINCIPLE
4. DUPLICATION
(5) UPLIFT
(1) £32,400 (invoice dated 14 December 1998)
(2) £7,450 (invoice dated 21 September 2000)
(3) £8,940 (invoice dated 21 September 2000)
(4) 5% of the recovery (by way of principal and interest) made in respect of the vehicles insured by Allianz pursuant to an agreement contained in or evidenced by correspondence between Websters and Allianz dated 11 September 1998 and 14 September 1998.
(6) INCLUSION OF COSTS OUTSIDE THE AMBIT OF THE COSTS ORDER